Thoughtful commentators, from both the Left and the Right, have noted that political legitimacy requires allowing all in the polity to participate in the political process, the outcome of which all are obligated to follow. Thus, in a democracy, all must be given the opportunity to comment on, and attempt to influence, the policies to which they and their fellow citizens will be subject. If certain groups, opinions, and political positions are banned from participation in the political process, then those groups are, quite naturally, not going to accept the legitimacy of the process and its outcome. Thus, James Weinstein wrote:
Ironically, however, hate speech restrictions can undermine the legitimacy of antidiscrimination laws, both in terms of their popular acceptance but even more crucially with respect to the morality of their enforcement. … I have argued that by impairing the opportunity for dissenters to participate as equals in the public debate about such matters as race, ethnicity, immigration, and sexual orientation, hate speech laws and public order provisions in force in many liberal democracies have significantly diminished political legitimacy … for those inhibited by these laws from expressing their opposition to antidiscrimination measures, these upstream speech restrictions have diminished, and in some instances may have destroyed, their political obligation to obey these downstream laws.
But the problem is more fundamental than this; when free expression does not exist, the political legitimacy of the entire state falls into question. When certain segments of a nation’s political spectrum are effectively disenfranchised, state claims of legitimacy and of “freedom and democracy” will increasingly be met with cynicism and public disengagement. Freedom of expression is therefore a necessary prerequisite for political legitimacy and social cohesion in a democratic state, and the eventual consequences of a breakdown in legitimacy rip apart the fabric of society. “Cancel culture” and social media bans, as well as a biased media, have already raised political tensions in our nation to a fever pitch. One cannot be sanguine about the future when the “solutions” proposed for our current state of division include even more censorship and repression.
Against the view of Weinstein (and myself) is the argument that so-called “hate speech” (typically ill-defined) “harms vulnerable minorities” by negatively affecting their perception (and that of others) of their “standing in society” and of their “social dignity.” This claim can be argued against in a several ways.
First, it can be viewed as a passive-aggressive form of a heckler’s veto — that some group can claim that they feel slighted in some way, and that their “social standing” is impaired, could be an effective way for that group to silence criticism (at least some of which may be legitimate). People can become offended, or claim to be “threatened,” by just about anything, and it is unreasonable to prevent others from political participation because of someone else’s claim of “hurt feelings.”
Second, this type of argument typically defines “vulnerable minority” in ways conducive to leftist concerns: racial, ethnic, religious, or sexual preference minorities. But what about political minorities? Dissidents who oppose the establishment viewpoint on controversial issues may well consider themselves to be members of a “vulnerable minority” and, certainly, suppressing the free expression of those dissidents will exacerbate their vulnerability and negatively affect their social standing and dignity.
Third, don’t demographic majorities have rights as well? Do the rights of majority members to express their opinions in a democratic society always have to take a back seat to the perceived interests of “vulnerable minorities?”
Fourth, if demographic minorities are so vulnerable, even in democratic societies, then don’t majority members have a strong vested interest in preventing their demographic collapse into minority status? Indeed, much of what is termed “hate speech” is merely majority group members strategizing in the face of demographic change. Preventing this legitimate political strategizing through speech suppression may promote the decline of a historic demographic majority to the status of a “vulnerable minority” Finally, I note that assertions that “hate speech” “silences minorities” are highly hypocritical, since those making these assertions want to use the force of law to silence the speech of dissidents, who are themselves political minorities. Again, whose “social standing” and “social dignity” are damaged in that case?
Free expression and freedom of speech are not divisible; they exist whole or they exist not at all. For example, in many European nations, one hears leaders state: “We believe in free speech, but (fill in the blank) is not included.” In other words, they believe in free speech for themselves and for others who believe the same as they do, but not for dissidents and other opponents of establishment policies. A variant of this approach is to state that “We believe in free speech, but hate speech is not free speech; it is a crime.” And who decides whether a particular form of speech is “hate”? Is opposing immigration “hate”? Is commenting on the relative assimilability of different groups into your society “hate”? Is discussion of group differences in traits, or the honest admission that race and ethnicity have a genetic basis, also “hate”?
There is nothing more important to discuss and debate than what your nation and society are going to be like in the future. If such discussion and debate are labeled “hate” and thus criminalized, then what of real importance is left to discuss? Are we then merely allowed to debate about tax rates? The price of milk? Why should those in power be allowed to leverage their temporary political advantage to pass laws to silence their opposition and turn that temporary political advantage permanent? Those in power can very easily eliminate their opposition by labeling opposing viewpoints as “hate”; thus, legitimate expressions of dissident opinions become outlawed. That is not democratic and it is not freedom; it is a blueprint for totalitarianism. A democracy cannot in good faith label issues of importance to the future of the nation as being beyond the pale and as illegitimate for discussion. And these principles apply to academic scholarship as well; if it is illegal to question historical events or the findings of genetics, then how does that really differ from an auto-da-fe of heretics? After what vision of Ancient Greece do we want to model our society — philosophers openly debating in the agora or Socrates being forced to drink hemlock?
Let us consider other anti-free speech arguments. Proponents of hate speech laws often compare so-called “hate speech” to “yelling fire in a crowded movie theater.” Putting aside questions of who gets to determine what “hate speech” is, how these determinations will be made, and how these determinations would not simply be used to silence dissidents, we can make two major objections to this “yelling fire” argument.
The first major objection to the “fire” analogy is that comparing politically-relevant speech to “yelling fire” (assuming of course that there is no actual fire) is a comparison between two fundamentally different memetic entities. Yelling fire in a crowded move theater (in the absence of a fire) is merely an act of verbal vandalism with no social or political content; there is no point in doing so other than to maliciously frighten people and cause a panicked stampede. It is fundamentally no different from a pyromaniac committing arson; in this sense, yelling “fire” is not much different, morally speaking, than actually starting the fire. On the other hand, speech on controversial topics is allabout social and political content; such speech is about expressing opinions on these topics, refuting opposing opinions, attempting to convince others of a position, and endeavoring to influence the political process and affect the trajectory of society. Equating speech that represents social and political content to pointless and malicious verbal vandalism is unreasonable and dishonest. Of course, there are already certain legal restrictions on speech in America, such as defamation or incitement to violence, which include, for example, solicitation for murder. Note that these laws already exist in the context of allowing controversial political speech and that they in no way justify inhibiting expression that has social and political content. Remember that truth is a perfect defense against defamation claims and that there is a clear distinction between expressing a controversial opinion and open advocacy of criminal actions that are illegal independent of any speech about those actions. Murder is illegal independent of any expressed opinions about murder; thus, speech actively soliciting murder is illegal because murder itself is illegal. In any society that values truth and freedom, opinions and facts in and of themselves are not, or should not be, illegal; hence openly expressing those facts should not be illegal.
What about the argument that merely criticizing a group and/or arguing for their exclusion is “incitement to violence” or even actual “violence” against them? First, this is hypocritical, as those on the Left who support this view typically openly incite violence against people on the Right, and, as we increasingly observe on the streets of America, engage in actual physical violence against ideological opponents. When people who continuously break existing law against physical violence advocate transforming non-violent speech into illegal “verbal violence,” the hypocrisy is breathtaking. Second, this is another form of the heckler’s veto. If someone somewhere is “threatened” by certain political speech, then that speech is “violence” against them and needs to be criminalized. Do we pre-emptively silence that expression out of fear of what may happen? To where does that chain of “logic” lead us? Where does it end? Is speaking out against “man-made global warming” “violence” or “incitement to violence” against, say, SUV drivers, airplane pilots, and coal miners? Is a “pro-choice” position “violence” against fetuses? Should such speech be criminalized? Or do we solely criminalize speech that those on the Left find offensive and against which they have no effective argument? And of course, we must consider that the “incitement to violence” arguments made by the speech-suppressors are always one-sided. They always bring up incidents that allegedly derive from right-wing free speech. What about leftist speech inciting violence?
The “fighting words” argument is related to the “incitement to violence” argument and is another example of the heckler’s veto. Here, we are told that certain things cannot be said because they will provoke conflict, even violence, not just among those who support the views, but among those who oppose these views — the “fighting words” that will provoke a violent reaction. But if some people cannot control their reaction to non-violent, political speech, then that should be their problem, not the problem of the speakers. If free expression is going to be held hostage to any and every possible reaction to that expression, then we have a fundamental problem. You could invoke the “reasonable” person threshold mentioned above. But “reasonable people” in a “reasonable American society” have allowed controversial political speech since the nation’s founding. The “fighting words” argument also has problem of self-contradiction. Indeed, there are many people who would label the very idea of speech restriction itself as “fighting words.” Based on speech-suppressing “logic,” support for speech restriction should itself be…restricted?
Let’s get back to the main line of argumentation — the “yell fire” argument. The second major objection to the “yell fire” argument is the question of what happens if there really is a fire in the movie theater. Yes, it is morally objectionable to yell “fire” when a fire does not exist, but isn’t it even more morally objectionable to stay silent when a real fire is starting in the theater and everyone’s life is at stake? Then, imagine a situation in which a person is prevented by law from warning others that their life is in danger from that fire. While a sane state should prevent the verbal vandalism of yelling fire when the fire does not exist, the same sane state should encourage, not muzzle, sincere warnings about serious danger. If there really is a fire, we must be allowed to yell “fire!”
There are many controversial issues, such as those involving race, immigration, sex and society, abortion, gun rights, etc., about which many people feel strongly. These people believe that aspects of these issues constitute dangers to society that are akin to a deadly fire, and they want to warn their fellow citizens about these dangers. You may disagree with their point of view, but what right do you have to strip them of their right to warn others of perceived danger? Maybe you look at the same situation and see no danger and thus believe that the warnings are unwarranted, but what if you are wrong? If there really is no danger, then prove it through argument, open discussion, and debate. But don’t equate deep concern about serious social and political issues with pointless verbal vandalism. For if they are right and you are wrong, the lack of a warning can have deadly consequences. What would you think about laws that prevented you from speaking out about issues of concern to you, laws that prevent you from warning your fellow citizens of danger? The Left should also consider that the paradigm of “speech is violence” can cut both ways. Is talk of “White Privilege” violence? Is Critical Race Theory violence? Some may say yes. “Speech as violence” is in the mind of the beholder, so to speak.
Fittingly enough, this whole essay of mine in defense of free expression is made possible by free expression itself. One wonders if, eventually, the totalitarian-minded enemies of free expression will attempt to criminalize speech that merely advocates in favor of free expression. Ban free expression and then ban any speech in support of free expression — the totalitarian circle is closed, the curtain closes on what used to be Western Civilization, and a new Dark Age begins. And that darkness may last a long, long time.