July 2015
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What Is Free Speech?

by Jonathan Wallace jw@bway.net

These are the opening pages of a manuscript I have been working on for some years on "The Idea of Free Speech".

In a disturbingly large number of human conversations, we may as well save our breath, because we are not using words the same way. When we talk about free speech, we assume that both of us, speaker and listener, understand the term, and, even more than that, understand it the same way.

Most people writing about “free speech”, even constitutional law professors at major Ivy law schools, may have no clue what they are talking about. Some words and phrases serve as placeholders, simply stopping a hole in a sentence, like the words “breaker of horses” do in The Iliad. It is probable that many of the terms we use in purportedly elevated dinner-time conversations, or in college dorm rooms at four in the morning, are plugs of this kind: “democracy”, “freedom”, “rights”. Language is highly over-rated as a means of communication, unless we really make an effort, one we are not often equipped to make, to get under the hood and understand our words.

“Free speech” is a deceptive phrase. It seems at first glimpse to be a standard adjective-noun pairing, like “inclement weather” or “inedible fruitcake”. (The latter may however be as redundant as “wet water”.) “Free speech” appears to be a variation on “speech”, as any adjective modifies a noun. First there is “speech”, then we experience gradations such as “free speech”, “censored speech” and so forth.

The problem is that when we talk about speech disputes and controversies, we are not primarily talking about the quality of the speech itself (though that often is raised as a misleading factor). In some fairy tales I will deal with in Part Three, the controversial speech consisted of “The emperor has no clothes”, “I am not a witch but merely trying to save my brothers”, “my evil maid enslaved me and in fact I am the princess”. Are these assertions “free” or “unfree”? We descend into a philosophical morass trying to figure that out. The Goose Girl in the last of the three tales mentioned is saying, “I am a slave”. Is that free speech if we are looking at it through an adjective-noun lens? Maybe it is if we add some words: “I am a slave but wish to be free”? Perhaps we can do the same with “I am not a witch”? For example, “I am not a witch and do not wish to be burned”. What about “The emperor has no clothes”? That one seems to be harder to characterize. It really does not express any personal aspiration of the boy (such as the swan girl's desire not to be burned, the Goose Girl's desire to be free). It expresses instead the boy's desire to advise the emperor of a difficult or embarrassing fact. Suppose it was “You have a zit on your forehead”? Is that “free” speech or merely “annoying”, “unpleasant” or “unwelcome” speech, if we must choose an adjective? Maybe the boy is assisting at the personal self realization of the Emperor. But who gave him that right?

Suppose the Goose Girl had said, “I want to be a slave”? Or “I accept being a slave”? When she refused to rat out the maid who enslaved her because she had sworn an oath, she sounded pretty timorous. Why in fact wasn't she jumping up and down and pounding on every door upon arrival, shouting “I am the princess!” It really does sound as if she collaborated in her own subjugation for quite a while.

In A.d. 54, Cicero wrote his friend Quintus: “My mind, even my animosities, are in chains”. D.R. Shackleton Bailey, Cicero (London: Gerald Duckworth & Co. 1971) p. 88 This statement, in a strange way, cancels itself out. Cicero was using his freedom, albeit in private correspondence, to complain he was not free.

In actual American twentieth century free speech controversies, the nature of the speech at issue has often been quite unfree. For example, an organization called the National Coalition for Sexual Freedom lost a federal court suit it brought a few years ago challenging the entrenched Miller pornography test of local community standards for obscenity, as it applies to sadomasochistic material posted on the Internet. (https://ncsfreedom.org/resources/communications-decency-act/itemlist/category/108-barbara-nitke-case.html) Plaintiff Barbara Nitke in the National Coalition's press materials describes herself as “a fine art photographer who explores sexual relationships in her work” and whose photographs are featured in a book entitled “"Kiss of Fire: A Romantic View of Sadomasochism”. In Yates v. United States, 354 U.S. 298 (1957) , the Supreme Court issued a landmark decision that the First Amendment vitiated a provision of the Smith Act making it a crime to advocate the overthrow of the United States government by force. The decision freed 14 lower level Communist Party officials in California.

The speech in Barbara Nitke's case could be characterized as “I want to be a sex slave”.Communist speech could be described as “I want to be a slave of a political doctrine, a tool of foreign masters”. In either case, the speech is then against freedom; it is unfree speech.

However, advocates of the speech in question could argue that the statements being made in both cases are “I want to be free”. A masochist may achieve self realization as a “bottom”; Communism purports to free its faithful adherents from being tools of a capitalist regime.

If, in fact, every free speech dispute unambiguously involved speech in support of freedom, and someone mean and evil who opposed it, then the confrontation described in the poem “Barbara Frietchie” would be the archetypal example of all such disputes everywhere. As you probably remember:

Up the street came the rebel tread,
Stonewall Jackson riding ahead.
Under his slouched hat left and right
He glanced: the old flag met his sight.

The Confederate general orders his men to shoot the flag down, and they do. Then Dame Barbara reaches out of her window, picks up the tattered symbol, and utters the following unforgettable defense of freedom:

"Shoot, if you must, this old gray head,
But spare your country's flag," she said.

Whereupon Jackson with a “blush of shame”, orders her and the flag spared. Its a lovely, simplistic story: Barbara speaks truth to power; power is persuaded; the end.

However, even the stirring tale of Dame Barbara is subject to interpretation. Stonewall Jackson, though he felt compassion for Barbara's gray tresses, probably saw himself as standing up to a monstrous Northern autocracy, which was attempting to insert itself into the smallest details of Southern private life. Who in this narrative is weaker, more marginal, Stonewall Jackson or the ultimately victorious nation represented by the flag?

There is a through-line uniting all these cases which has nothing to do with the nature of the speech itself: each involves an utterance of a weak, helpless person who risked displeasing someone in power. The Goose Girl was afraid of being murdered; a secretary of a local Communist group feared prison; photographer Barbara Nitke was concerned about being indicted in Ohio; dame Barbara dared Stonewall Jackson with his rifle-men: each of them is staring into eyes more powerful than her own.

It is therefore not the quality of the speech itself which is important, but the fact that it potentially offended someone who had the authority to do something about it. In a so-called “free speech” dispute, it really does not matter if the offensive speech is “I want to be free” or “I want to be a slave” or “You have no clothes” or even “It is Tuesday”. Describing some cases in which defendants were convicted for screaming abuse at police officers, R. George Wright noted: “There is sometimes the sentiment that the disorderly conduct conviction should be upheld even if, under the circumstances, the defendant had loudly and prolongedly recited nursery rhymes.” R. George Wright, “A Rationale from J. S. Mill for the Free Speech Clause”, The Supreme Court Review Vol. 1985, (1985) 149, p. 177.

Later, I will look at some unusual examples of dispute-speech, including silence, laughter, clothing, foreign languages, slang words, and hand-clapping. What is clapping, in use in political demonstrations in Belarus, on our adjective-noun speech scale? Is it “free” because performed in opposition to government, or “unfree” because the participants are afraid to use their words? We get lost if we spend too much time trying to answer this question. The relative “freedom” or “unfreedom” of the speech is not what is significant. In fact, the demonstrators might have agreed merely to shout, “It is Tuesday!” Suppose they did so at a Tuesday demonstration: would that have been any less displeasing to the authorities, because truthful? Of course not. The significance is not even slightly in the chosen speech any more, but in the fact it is “out of control” and therefore displeasing to power.

I had a personal experience of an objectively trivial action being displeasing to power; on November 15, 2011, as Zuccotti Park in downtown New York City was being cleared of Occupy Wall Street protestors, I was arrested a block away at the corner of Broadway and Cortlandt for disorderly conduct for, wait for it, standing stock still on the sidewalk. That's right, my act of disorderly conduct consisted of doing nothing whatever. I assumed that I was exercising my First Amendment right to assemble peacefully, but the cop who arrested me undoubtedly found my conduct offensive because I was standing still in support of Occupy Wall Street. In one of the funniest examples I found of power remonstrating with weakness, a member of the House Unamerican Activities Committee informed Zero Mostel that imitating a butterfly at rest was offensive if he was being a butterfly at rest on behalf of the American Communist Party. So-called “free speech” disputes vary in terms of the nature and quality of the speech itself, but all have one thing in common: that someone less powerful is speaking to someone more powerful who is offended by the speech and has the ability to harm the speaker.

From now on, I will use the phrase “dispute-speech”, to designate the things people say that actually, or are designed to, cause speech-related controversies : utterances which trigger a reaction from someone more powerful, or which might predictably have, or whose speaker knowingly risks such a reaction. To describe speech uttered by the powerful, those who are dominant in a particular surrounding or polity, I will use the phrase power-speech. Some ideas (the moral superiority of the poor in religion, radical democracy in the Thomas Paine style, the dictatorship of the proletariat) are traded back and forth between power-speech and dispute-speech over time.

“Free speech” therefore is shorthand for “freedom of speech”. If the “freedom” is not a quality of the “speech” itself (here we wave goodbye to adjective-noun), it must be a quality of the system in which the speech is uttered. If that is so, it clearly becomes far less important whether the speech itself promotes freedom, or slavery, or is neutral. We are starting to envision a system which protects weaker, more marginal people who utter statements of any kind (even “it is Tuesday”) potentially displeasing to power.

As I said in the introduction, ethics is one of those intangible matters which crop up in ordinary life at a far higher frequency than we imagine, for example when the woman at the news-stand gives us too much change, or we learn something that a friend would benefit from knowing but find unpleasant. We live in a sea of right and wrong, as we do of dispute-speech and the responses of power to it.

Every incident involving dispute-speech is also a moral moment, and sometimes on two levels. First, there is the substantive issue of whether the speech is good or evil. Aristotle provides a guide to this evaluation in a different context when he says in The Poetics:

[O]ne should consider not only the intrinsic quality of the actual word or deed, but also the person who says or does it, the time, the means, and the motive of the agent, whether he does it to attain a greater good, or to avoid a greater evil. (p. 48)

Next, there is the procedural question, whether our response to the speech is right or wrong. In an earlier, simpler time, we never had to think about the procedural issue, or did so in a way driven by the nature of the speech: encouragement of “good” speech was “right”, while censorship of “evil” speech was also “right”. However, in an age of humility and tolerance, of a free speech rule-set, the rules become more complicated, and for the first time we have the moral issue of the circumstances under which the tolerance of “evil” speech is “right” and its censorship “wrong”.

We still apply a certain naivete to free speech disputes: we are either predisposed to react with horror (“bondage! disgusting!”) or appreciation (“resisting the depradations of the 1%! noble and daring!”) If the only theme common to all dispute-speech is that it offends power, it becomes clear that it has no inherent, consistent moral quality whatever, but may in fact be parroted (“Workers of the world, unite!”); or inexplicable to anyone who tries to formulate a rule about it (dadaism; scatological novels so dense nobody can interpret them, but “I know it when I see it”); or even have no content whatever, except the fact it is uttered or performed with the intention of annoying someone (hand-clapping).

"I disapprove of what you say, but I will defend to the death your right to say it"-- this famous statement was made by Voltaire biographer Evelyn Hall and has since commonly been attributed to Voltaire himself. We can trace the historic trends which lead to a system of great authority, with military and police force at its command, solemnly promising to refrain from harming the powerless in retaliation for mere speech, and sometimes keeping that promise.

The mission of this book is, now that we have defined our terms, to look for occurrences everywhere in human history of speech uttered by the weak and potentially displeasing to the powerful; to examine the conditions under which it was excused or tolerated (it is much easier to find examples of the speaker being murdered); and to analyze the remarkable leap in human social evolution that occurred when a right to speak freely was first embodied in law, as opposed to being a happenstance matter, dependent on the tolerant personality of an autocrat, the obscurity or geographical isolation of the speaker, or at best, tolerance founded in cultural predispositions.

It is a truism that free speech rule-sets are only meaningful when tested by speech that really disturbs us; maximal free speech is a meaningless concept if all the speech in the environment is benign, easy-going, optimistic, cheerful. “Free expression can be proved to exist only when it is offensive, and should this paradox be forgotten then the right of free expression is seriously endangered.” Winston, Messages, p. 248