The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Journal of Free Speech Law: "The Unfortunate Consequences of a Misguided Free Speech Principle," by Robert Post
A new article from the Daedalus (Journal of the American Academy of Arts and Sciences) Future of Free Speech Symposium.
The article is here; the Introduction:
There is growing pessimism about the future of free speech in the United States. Crusaders from all sides of the political spectrum seem intent on suppressing objectionable discussion. The worry is that Americans may be losing their appetite for candid and constructive dialogue. It has become too costly to participate in public discourse. We fear that incorrect speech will be canceled by the left or bullied by the right.
This is surely a troubling state of affairs. But it can be cured only if we first correctly diagnose its causes. There is a widespread tendency to conceptualize the problem as one of free speech. We imagine that the crisis would be resolved if only we could speak more freely. But this diagnosis puts the cart before the horse. The difficulty we now face is not one of free speech, but of politics. Our capacity to speak has been disrupted because our politics has become diseased. We misconceive the problem because American culture is obsessed with what has become known as the free speech principle. It is a principle that is widely misunderstood. Our misconceptions are as deep and as they are consequential.
I shall take as my text a representative and much-discussed 2022 opinion piece by the editorial board of The New York Times entitled "America Has a Free Speech Problem." In its first sentence, the editorial warned that Americans "are losing hold" of the "fundamental right" to "speak their minds and voice their opinions in public without fear of being shamed or shunned." The editorial did not focus its attention on government regulation of speech, which is the particular domain of the constitutional law of the First Amendment, but instead on the more basic question of free speech itself. It urged Americans to extend to each other the fundamental right to say whatever is on their minds. The editorial suggested that the more speakers could express their thoughts, the more our politics would heal. It implied that the current dislocation of our politics could be solved by more speech.
The editorial's framing of the issue is not idiosyncratic. Advocates of a free speech principle abound. Yet the editorial rests on a misguided understanding of free speech.
Whatever freedom of speech might signify, it does not mean that unrestrained expression is inherently desirable. It does not mean that more speech is always better. One can see this clearly if one imagines the limit case. Those who cannot stop talking, who cannot exercise self-control, do not exemplify the value of free speech. They instead suffer from narcissism. Unrestrained expression may be appropriate for patients in primal scream therapy, but scarcely anywhere else.
Normal persons ordinarily feel constrained to speak discreetly. I might detest my friend's wife, but I will refrain from telling him so in ways that might hurt his feelings. Speech is the foundation of all human relationships, but no human relationship can exist without tact or discretion. No friendship can survive unrestrained communication that ruptures elemental norms of mutual respect. More speech is not always better.
No doubt friendship also requires candor and spontaneity. Sometimes friends must articulate to each other truths that are unpalatable and difficult to express. How then do we balance the need to speak freely against the need for tact? The answer is that we should choose to speak in ways that will make our friendship as good as it can be. We speak when it improves the quality of friendship; we exercise self-restraint when it improves the quality of friendship. The relevant good we seek to achieve is friendship, not more speech.
The same logic applies to almost all human relationships. We do not value speech from the solipsistic perspective of the speaker. Instead, speech that contributes to the excellence of a relationship is valued; speech that undermines the value of a relationship is suppressed. Consider, for example, the lawyer who speaks to a court or a client. The lawyer does not simply say what is on her mind, nor would it be a good thing if she did. The lawyer's goal is not to produce the maximum number of words. The goal of the lawyer is instead to produce the best possible results for her client. To achieve that goal, a lawyer must balance candid expression against tactful self-restraint.
In my own capacity as a professor of law, I would never assess the success of my classes by the number of words I have expressed. I rarely simply blurt out what is on my mind. I instead try to speak in ways that maximize the educational value of my classes. This means that I always balance self-restraint against spontaneous self-expression. There is no principle of free speech that can override this simple, essential, and universal logic.
This suggests that the premise of the New York Times editorial, while familiar from continuous iteration, is fundamentally misguided. Abstract principles of free speech tend to rest on unstated and undefended premises about the desirability of an uninhibited and unrestrained flow of words. But in actual life, we know full well that human speech always transpires in the context of concrete relationships. This means that we never value speech as such. We instead prize the good of the relationships within which speech is embedded. We do not honor the speech of friends; we honor friendship. The eloquence and advice of lawyers are not important except insofar as they advance the rule of law. Classroom discussion is not significant in itself; it is only valuable insofar as it facilitates education. And so on. All such judgments are substantive and contextual.
