You Don’t Have a Right to Say Whatever You Like

The current debate about free speech doesn’t pit a creeping totalitarianism against a liberal order on the brink of collapse. Instead it calls for a messy compromise.

It’s difficult to complain that your freedom of speech is being constrained when you are the beneficiary of a power imbalance that allows you to publish a letter in a well respected magazine that sparks an international debate about the subject. But leaving all sense of irony aside, that is what happened last week when leading intellectuals, authors and artists penned an open letter to Harper’s magazine in which they alleged that the “free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted.”

For the authors in question this statement was rendered absurd as soon as the thought was articulated. It is what German philosopher, Jürgen Habermas, would call a ‘performance contradiction’. In saying what they said, with the megaphone provided by the platform they’re afforded, they ripped the rug from under their own feet, because the very articulation of the claim renders it untrue. It can’t be claimed that their speech is being constrained because the opposite is the case — every signatory of the letter benefits from a power dynamic that amplifies their voice to an extent that renders the proposition not only false, but laughable.

So they can’t be arguing that their own speech is being constrained. Instead, they seem to be pointing to a more subtle threat to freedom of speech, which is a product, they argue, of “moral certainty,” “intolerance of opposing views,” and “a vogue for public shaming and ostracism.” This claim reminds me of something that worried John Stuart Mill. He argued that, whilst speech can be directly threatened by the censoriousness of the state and its functionaries, it is more often threatened by a “despotism of custom” that limits our speech and action more subtly and insidiously. This kind of threat might manifest itself in a disinclination to say certain things, for fear of causing offence or due to the backlash that might be provoked. More seriously, you might genuinely fear that expressing a particular view will damage your reputation to such an extent that you could lose your job or your public standing.

This argument is slightly more persuasive, but raises as many questions as it provides answers. As Stanley Fish argues, arguments about the grounds and limits of free speech can’t be resolved in the abstract. Instead, we need to recognise that free speech needs to be balanced against competing values. Before we can decide if free speech is in need of protection we need to take account of “what is at stake and what are the risks and gains of alternative courses of action”. To think otherwise is to think that free speech trumps all other concerns, which can’t be the case when free speech routinely comes into conflict with other values.

I’ll use myself as an example to help illustrate the point. As a teacher, I have a position or standing and influence in the community and I’m in a position to influence my students for good or ill. This places all sorts of reasonable constraints on my speech. For a start, I would expect to lose my job, and would have no qualms about the sacking, if it was found that I had expressed views that undermined the equal standing of my students, whether due to homophobia, sexism, racism or transphobia. I would also quite reasonably face a reprimand if I attempted to use my position to influence my students’ political allegiances by trying to get them to vote in a particular way. In both cases, I recognise that there are reasonable constraints on my speech because my position creates obligations that trump my right to say whatever I like. By the same logic, academics who express views that undermine the equality of their students ought face censure as David Starkey did a few weeks ago after saying that “slavery was not genocide otherwise there wouldn’t be so many damn blacks in Africa.”

By contrast, there might be cases where an employee is sacked for falling foul of the shifting goalposts of what is regarded as acceptable in a society undergoing profound social change. The case of David Shor is oft-cited by critics of cancel culture as a case in point. It is alleged that he was sacked for what strikes me as a perfectly innocuous tweet about the effect of protest on voting behaviour:

If true, this is an alarming case as it demonstrates that the policing of the boundary between acceptable and unacceptable speech is being challenged by illiberal elements on the left, whose moral certainty creates an impossibly inflexible standard for the censuring of speech. As Michelle Goldberg argues, “a climate of punitive heretic-hunting, a recurrent feature of left-wing politics, has set in, enforced, in some cases, through workplace discipline, including firings.”

Yet those who argue that the current debate pits a creeping totalitarianism against a liberal order on the brink of collapse are guilty of needless hyperbole. The case of David Shor is genuinely worrying, but I would take some convincing before I saw this as part of a broader illiberal cultural trend, rather than being a product of a broadly liberal political culture grappling with where to draw a difficult line in the sand amidst radically shifting cultural attitudes.

Navigating these debates is tricky and getting the balance right won’t please everyone, but we need to start by agreeing that there is a balance to be struck. For those who challenge free expression there needs to be a recognition that we live in a plural society where there is reasonable disagreement about where the line between acceptable and unacceptable speech should be drawn. For those who defend free speech, there needs to be a recognition that a right to free speech doesn’t override all other claims. As is often the case, what is required here is a messy and unsatisfactory compromise that moves beyond the dogmatic positions that have begun to emerge.

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