In Defense Of Free Speech Pedantry

UCLA Professor Eugene Volokh, probably the most influential and important academic voice on First Amendment issues, has been soliciting feedback on a draft article Free Speech Rules, Free Speech Culture, And Legal Education. In the article he argues that law schools and law students should be more open to serious discussions of controversial ideas in order to produce more capable lawyers. The article itself is well worth reading, but I want to talk about something more meta: the title, and the clarity it seeks.

It’s good and sensible to debate the contours of free speech. But we waste a lot of time not on substance, but on meta-quarrels over identifying what we’re arguing about. Whenever a public figure makes a dubious pronouncement about free speech, the first reaction is not to evaluate it on its merits, but to dispute whether the person was offering a descriptive statement of the law (which can be true or false) or a normative statement about the culture (which cannot). People interested — say rather, obsessed — with the topic can often suss it out from context, but the distinction is often opaque to most.

That’s unfortunate. Talking about our legal rights, and helping more citizens understand them, is an unqualified good. Debating “free speech culture” — that is, seeking consensus on how we should react socially and private-institutionally to speech we hate — is also good, as I have argued. So, for that matter, is discussing the ancient question of what speech is kind, decent, or morally acceptable. But those are very distinct questions, directed at us wearing different analytical and philosophical hats. The questions address different values.

I submit that being precise about which free speech value you’re talking about is good, and that vagueness about it is counterproductive and sometimes harmful. Clarity contributes to understanding the law and to defining what cultural issues are in dispute; vagueness obscures those things.

What Are The Different Free Speech Values?

I believe there are three distinct categories of free speech values: free speech rights, free speech culture, and decency of speech.

• Free Speech Rights — “FSR”

The first is fairly obvious. Free speech rights are rights conferred by law — in America, by the First Amendment, state constitutions, federal laws like Section 230 of the Communications Decency Act of 1996, state laws like Leonard’s Law in California, and the bodies of common law interpreting those authorities. Even mundane things like contract law can govern free speech rights, like when a contract specifies what process a private employer must use to discipline an employee.

The key point about Free Speech Rights — “FSR,” let’s call them — is that at least in America, both the rights and the process by which the rights are identified and their boundaries determined are well-known and knowable. Whether it should be protected speech to burn your draft card is debatable; what the Supreme Court has said about that is not. (Answer: No.)

Does the law change? Yes. Do courts’ interpretation of the law change? Yes. Do courts sometimes get it wrong? Yes. Can two judges look at the same facts and reach different legal conclusions? Yes. Can judges sometimes come up with First Amendment interpretations that seem completely deranged? Oh hell yes. But that’s doesn’t mean “what is the law” means the same as “what do I think the law should be.” It doesn’t. It’s not science, but it’s not art, either. The law is identified and interpreted through a known and familiar series of methods, and even if judges sometimes deviate from those methods, they tend to deviate in predictable ways, along predictable axes. You can look at the law and tell whether a proposed change would be a plausible slight extension of existing law or a sea change.

This is important. When we’re talking about our rights, and the changes we want to them, it’s useful to know whether that change would be the slow work of generations (like conservatives gradually undermining the right to abortion between 1973 and 2022) or the work of a single case or single election.

Part of any accurate discussion of FSR is knowing not only what our free speech rights are, but the system by which our rights are identified and their limits established. Consider the popular phrase “hate speech is not free speech,” and assume for a moment someone is using it to make an argument about what the law is, or what it could easily be changed to be.

To evaluate that argument, first you’d want to know that it’s plainly wrong as a statement of existing law — there is no “hate speech” exception to the First Amendment. If someone said “well, the Supreme Court could change its mind,” you’d want to know that the Supreme Court was recently unanimous in agreeing there is no such exception. If someone said “well, not all speech is protected, and a new Court could decide that the harm of racist speech outweighs the benefits of it, even if a prior Court disagreed, and make a new exception,” you’d want to know that the Supreme Court relatively recently agreed 8-1 that we’re not making new First Amendment exceptions outside the established limited set of them, and certainly not making them based on balancing tests:

Finally, if someone said “well, we can just say that hate speech is incitement, or a threat, or fighting words, and there are First Amendment exceptions for those,” you’d want to know that each of those exceptions has been defined and limited in a way that wouldn’t extend to everything we might call “hate speech.”

My point is that knowing about FSR involves not just knowing rules but knowing how rules are made, and that an argument that “well the Court might change its mind” can be immediately plausible or implausible without generations of development. Carefully distinguishing between discussions of legal rights and cultural values helps highlight that. Blurring the lines promotes misunderstanding that.

• Free Speech Culture — “FSC”

The next category is “Free Speech Culture,” or “FSC,” sometimes called “free speech values” or “free speech principles.” An appeal to FSC is based on history, philosophy, and political science. It presumes that it’s a social good to have wide-ranging, robust, uninhibited debate on important issues, though it might reach that conclusion by different roads. Some believe that a “marketplace of ideas” inevitably produces the conclusions best for society, some believe that all speech has inherent value, and some (like me) believe that as a matter of humility and consciousness of our limits we should be should be careful deciding that we are so clearly right that contrary ideas shouldn’t be heard. Ultimately FSC is utilitarian — we use it to debate how we ought to act collectively for the healthiest society and the optimal pursuit of knowledge.

Here’s where we debate not whether a private school has a right to disinvite a controversial speaker, but whether as a matter of academic culture it should. Here’s where most debates about “cancel culture” will fall.  Carefully separating out the legal “may” from the philosophical “should” helps clarify the argument.

That clarity also helps us acknowledge all of the competing interests involved. One of my criticisms of current FSC talk — which I have repeated recently — is that people tend to ignore that FSC and FSR are not only distinct, they can conflict. Put another way, FSC arguments often involve asking Group A not to do or say x — which they have the FSR to do — so that Group B is not chilled or deterred from doing or saying y. When you say, for instance, that I shouldn’t boycott a company for sponsoring entertainment I find offensive, you’re making a plea that I should restrict my lawful expression in order to protect other people’s expression. I’m not saying that argument is inherently wrong. But I am saying that it should be made out in the open, and that being precise helps us do that. So, for instance, when I denounce students for shouting down a speaker and preventing them from speaking, I should be clear that I’m saying that the students’ behavior may exceed their FSR (because reasonable time, place, and manner restrictions are permissible) and that I’m making a FSC appeal for the students to refrain from using their expression to dictate what other people can say and what other people can listen to.

• Speech Decency — “SD”

Finally, some debates about speech are about human decency — Speech Decency, or “SD.” I think sometimes that familiar phrase “hate speech is not free speech” is an appeal to SD. It’s a way of saying that there’s an idealized set of speech that may be controversial or disagreeable but ultimately is not cruel and contemptible, and that racist speech is outside of that set.

This is a perfectly legitimate debate. It’s fine to say that using a racial epithet is usually protected by FSR, that in some circumstances it ought to be protected as a matter of FSC (for instance, in allowing “Huckleberry Finn” to be taught to high school children notwithstanding its use of epithets), and that people who use it to belittle and demean ought to be called out as a matter of SD.

Once again, clarity about values helps illuminate the different rights and different interests in play.

Clarity Matters

Debates that clearly identify FSR, FSC, and SD are useful and sometimes even illuminating. They have the potential to teach people about their civil rights and about American government. They can persuade our fellow citizens about how to balance different interests, or at least clarify how we reach our personal outcomes on difficult social and cultural questions.

Debates that sloppily conflate FSR, FSC, and SD are counterproductive. They tend to misinform people about American civil rights, especially if the listener is not already sophisticated on the subject. They produce some of the most persistent delusions of free speech discourse — like the imagined right not to be offended or the supposed right not to be criticized. Here’s an old classic:

This confusion persists everywhere from marginal spaces (like John Rocker at World Net Daily bemoaning we can’t “speak freely without fear of chastisement”) to prominent mainstream spaces (like the New York Times, in a fit of idiocy that I’m still not over, declaring “a fundamental right as citizens of a free country: the right to speak their minds and voice their opinions in public without fear of being shamed or shunned.“)

The “right not to be offended” is a confusion of FSR and SD; the “right not to be criticized” is a confusion of FSR and FSC. Conflating FSR, FSC, and SD tends to obscure the differing and sometimes conflicting interests involved. It promotes ignorance and venting, not understanding.

Finally, I think that categorical clarity increases support for free speech and ambiguity decreases it. “The fact I hate some speech doesn’t mean the government should punish it” is a hard sell; it always has been. “The fact that I hate some speech doesn’t mean that private institutions should suppress it” is a harder sell. “The fact that I hate some speech doesn’t mean I should pass moral judgments on it” is an impossible sell and also wrong and philosophically incoherent.

It’s crucial to the core bargain of free speech — that the state, or the community, refrains from punishing ugly speech because the remedy is more speech — that we are equally open to people making and voicing their own moral judgments about ugly speech. In other words, the justifications for FSR and FSC rely on everyone being free to voice SD opinions. Too many modern discussions blur these lines and wind up conveying that it’s somehow wrong not just to suppress speech, but to judge it. That’s nonsense, and encourages contempt for the whole free speech bargain. But if you encourage people to say “this is protected as a matter of FSR, and I don’t think this private institution should prevent it as a matter of FSC, but I condemn it as a matter of SD,” then people are more likely to support free speech.

This is not a plea to understand, or value, Free Speech Rights, Free Speech Culture, or Speech Decency the way I do. It’s not a plea to reconcile them the way I do. It’s a plea to be more specific about which value you’re talking about.