The Difference Between Can and Should: Protection and Exercise of Free Speech in a Democracy

Joseph Kaczmarek

Lewis Lapham, the editor of Harper’s Magazine, begins his book, Gag Rule, on a day which has begun many stories in the last six years: September 11, 2001. It chronicles the singular unity of purpose that pervaded our nation in the weeks and months following the attacks, and the way in which we drew together behind our flag and our government in the pursuit of security and justice. Unlike many of the stories that have been told about those days, Gag Rule does not present that unity in a positive light. On the contrary, Lapham argues in page after page of cutting, bitter prose, that our unity was harmful and dangerous, because it temporarily destroyed a large section of the population’s willingness to engage in, or even listen to, expressions of dissent. He argues, with the aid of quotations by historical figures ranging from Thomas Paine to Theodore Roosevelt, that purchasing consensus at the cost of healthy disagreement is a betrayal of democracy, even (or perhaps especially) in times of crisis (Lapham 2004, 1-40). While many may take exception to Lapham’s politics, at the core of Gag Rule is a thesis with which virtually all citizens of a democracy must agree: that the freedom to speak is a key component of any healthy democratic society. Speech, as both a right and a process through which public policy is decided, plays a constitutive role in democracy. Its free and open exercise is essential to ensuring that democracies continue to exist, because liberty is not only preserved through martial might but also, and perhaps even more vitally, through the maintenance of the democratic rule of law that, in our society, is its guardian and administrator. This does not happen spontaneously, accidentally, or idly. Rather, it requires that conscientious citizens continually engage in those pursuits through which democracy was established in the first place: not just the prosecution of military operations, but also the deliberation and participation in public life of both elected representatives and private individuals seeking a freer, more just, and more equal society for themselves and their children. Without such engagement we are surely doomed to lose sight of the high ideals on which liberal democracy was founded. It is my hope that the compilation about freedom of speech of which this essay is a part will contribute to that sort of participation within our university community.

Debates about free speech, which are almost always debates about how speech may or may not be acceptably limited, have been an important part of democratic societies for as long as they have existed. In the nascent days of western civilization the Greeks and Romans spoke of the central importance of freedom of speech, while at the same time often abrogating the speech of their citizens in ways that would almost certainly not be tolerated in a modern democracy (Darbishire 1994, 18). And so it has continued since then, with every society that professes the importance of protecting freedom of expression struggling to find the proper balance between preserving speech and fostering stability, civility, equality, and every other value with which unbridled speech may seem to conflict. Today the increasingly heterogeneous and multicultural nature of our society, the rise of new forms of communication, and a growing awareness of the pervasiveness and persistence of historical inequalities continue to add new layers of complexity and urgency to this debate.

It is the task of each individual in a democracy to help resolve this dilemma. To do so, citizens must examine the issue carefully, weigh it themselves, and come to a conclusion that they can contribute when it is time to decide the matter in the public sphere. That is what living in a democracy is all about. My contention is that a multicultural democracy will be best served by a two-part approach to freedom of speech. First, the government, in the interest of preserving those things which make speech so valuable, and with an awareness that any censorship will necessarily be crafted and enforced by human beings who are neither omniscient nor free of the temptations of self-interest, should set broad protections in place around expression and endeavor always to err on the side of free speech, even in those cases in which the speech in question is objectionable. Second, citizens should recognize that government protection is not the same as societal endorsement, and there should be a powerful and broadly held cultural awareness that speech should be engaged in with consideration of other citizens, not used as a weapon of degradation and marginalization. Offensive speech should not be proscribed, but it certainly can, and usually should, be met with disapproval and opposition.

The remainder of this essay is devoted to supporting that contention. I will first discuss the different reasons for which the freedom of expression is traditionally valued, focusing primarily on those which have been most prominent in past discussions of this issue: the role of communication in determining truth, sustaining a democracy, and contributing to the individual exercise of free conscience and the pursuit of happiness. It is from these functions of speech and the value we place on them that all arguments for the protection of speech stem. I will then contrast these with the liabilities that unrestricted expression poses for a society, especially the promulgation of hateful and derogatory messages and the fact that speech can faithfully serve the purposes of individuals who seek to subvert the very goods that protecting expression aims to preserve. With this groundwork laid I will move on to examine the question of governmental regulation of speech, taking into consideration the positive and negative aspects of free expression and also the liabilities inherent in preemptive regulation in order to support the first part of my thesis. Finally, I will assert that in an ideal multicultural democracy broad governmental protection of speech will be complemented by a cultural awareness that the right to free speech ought not be twisted into a shield for those who would say terrible things and that there can still be public and private opposition to speech that is hateful and discriminatory.

Freedom of Speech and Why It Is Valuable

In order to avoid confusion, this discussion of freedom of speech will begin with a definition of the term. In this context “freedom” is not used to denote a total lack of constraints, as it does in its most absolute sense, but rather as a stand in for “liberty,” the more qualified notion that individuals shouldn’t be bound by “arbitrary or despotic government or control.” Like “freedom,” “speech,” in this context, denotes something other than its common conventional meaning. It refers not merely to spoken interpersonal communication, but to any conduct which an individual or group might use “to communicate or express a thought” (Merriam-Webster, Inc. 2007).

Communication saturates virtually every aspect of human existence. It is the mechanism by which disparate individuals are able find and affirm common ground, make each other aware of problems, find (or fail to find) solutions to those problems, form and participate in social institutions larger than themselves, and generally live and work with one another. Communication is an essential part of everything from business and government to art and education, religion, culture, love, and war. This is why speech and questions about it play such a central and complex role in society and government, especially in democracies, which by their very nature emphasize the importance of consensus-building that cannot take place without communication.

Communication fulfills a multitude of roles as it facilitates all of these different aspects of human life and culture, but a few of these roles are more pervasive or significant than the rest, and it is from the need to safeguard one or more of these that arguments for the protection of free speech have traditionally stemmed.

Of the two rationales for protecting free speech that have been most prominent in American jurisprudence, the first is a belief in the value of preserving a “marketplace of ideas.” This argument, championed most iconically by Supreme Court Justice Oliver Wendel Holmes in the early years of the 20th century, insists for several reasons that there is value in the clash of differing opinions and so the government should refrain from preventing this clash by proscribing the expression of any given point of view (Sunstein 1993, 24-5). The first of these reasons is the belief that when ideas are allowed to clash with each other in the arena of public consideration, truth will become apparent and falsehood will fall by the wayside. The second is a skeptical conviction that it does not do to allow any idea or institution to become so entrenched that it is immune to criticism.

British political thinker John Stuart Mill was a particular proponent of the first theory, maintaining that not only will truth emerge triumphant from the general tumult but that this is the best way for us to come to the truth, because our understanding will be all the stronger and clearer for having overcome falsehood (Moon 2000, 9-10). Some argue that it is na•ve to think that the majority will be able to determine what is correct and what is not when presented with every available opinion. It is true that, in an age of reality television and intelligent design, vesting faith in the general public to give its allegiance to truth rather than falsehood may seem a daunting prospect, but human history is, in the long run, a record of the persistent if gradual emergence of newer and more complete truths. If, as one author put it, our optimism that this trend will continue, “is not blind naivetŽ but is rather a motive force that encourages us to keep the faith in the long view of history,” then “it can be a self-fulfilling prophecy” (Smolla 1992, 7). The hope that a group of well-meaning individuals can form a consensus that will lead them to think and act rightly is one of the primary justifications for faith in the democratic system. If we abandon it entirely we may as well start casting about for a philosopher-king.

Skepticism does not require such a sunny outlook, and so belief in its value is easier to swallow and it, too, is justified by history. The differences between accepted convention and the reality of how the world works tend to become apparent over time, no matter how self-evident and objectively true the convention seemed when it was first adopted. Despite this the temptation to protect what currently passes for bedrock truth with the force of law is ever present. Some of free expression’s staunchest proponents value it as a remedy for this folly. In 1919 a political activist was prosecuted and convicted under the Espionage Act of 1917 for distributing leaflets criticizing capitalism and the United States’ Government. While the Supreme Court upheld the decision, Justice Holmes eloquently dissented, saying:

If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all oppositionÉbut when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can be carried out (Sunstein 1993, 24).

Our past is replete with instances in which the power of law was invoked to suppress emergent truth in order to shield established orthodoxy. And this tactic has resulted, frequently and famously, from the house arrest of Galileo to the Scopes Trial, in the embarrassment of the powers that be and the eventual vindication of truths that would not be silenced and which were revealed by the light of public scrutiny to be the correct choice after all. Because of this, and even more so because of the tragic, frightening possibility that official sanction has at some point successfully extinguished progress and worsened the lot of the human race by extending the reign of flawed understandings of the world, thinkers such as Justice Holmes maintain that preserving a free and open marketplace of ideas by protecting freedom of expression should be a priority of government.

The traditional American counterpoint to marketplace based arguments in favor of free speech protection has been the notion that speech needs to be protected because of its importance to the continued function of a democratic political system. This view has been championed most prominently by Supreme Court Justice Louis Brandeis and philosopher Alexander Meiklejohn (Smolla 1992, 12; Moon 2000, 14). It is, in some ways, easier to understand and defend than the open market argument for speech. Anyone who has participated in a democracy understands that speech is a key part of the system, playing a central role in the business of government on every level, from the canvassing efforts of local politicians to the deliberations of the highest courts. But the argument from democracy, as it has been developed by different thinkers over the years, goes beyond the understanding that speaking is necessary for democratic deliberation. It is a nuanced and complex assertion that works on several distinctly different though complementary levels.

First, protecting expression protects the vitality and legitimacy of the vote, which is the lifeblood of democratic government (Moon 2000, 14). In order to vote meaningfully for one proposal over another, voters have to be free to put forward any option they choose and to disseminate and receive relevant information about the options before them. This notion can be further developed into a sort of politics-specific version of the marketplace metaphor. Free speech ensures that citizens have the ability to freely and fully discuss the issues of government before them, which will give them the best chance of completely weighing their options and choosing the course of action that will most perfectly reflect the will of the polity and be most advantageous for the society (Smolla 1992, 12). It protects discussion and criticism of the sitting government, ensuring that the elected leaders and the institutions they run are not insulated from the influence of the public they are intended to serve.

At the same time that it facilitates the smooth and vigorous exercise of majority rule, protecting freedom of speech benefits a democracy by ensuring that a power-hungry majority is not able to subvert democratic principles (Richards 1999, 18-19). By protecting free speech, a society ensures that a majority can never use its political clout to subvert the ability of a minority to protect its interests by speaking for itself in the public sphere. This is a function of protected speech that is of special import to a multicultural democracy in which many diverse voices seek to participate in the political process.

Justice Brandeis further argued that political participation was not merely a means to an end but also an end in and of itself. He believed that the act of participating in the work of democracy and taking an active hand in the shaping of their own fates contributed to the individual development and fulfillment of members of the polity (Sunstein 1993, 27-8). Thus, it is important to protect speech in a way that ensures that every individual citizen will have access to the dignity and self-fulfillment that comes from participation in democracy.

Finally, some authors hold that protecting the right to speech, especially when it is being exercised by unpopular or objectionable minorities, helps maintain the peace and stability of the state (Smolla 1992, 13). By ensuring that the majority is not able to deny a minority its right to expression, protecting free speech helps to prevent the feelings of disenfranchisement, helplessness, repression, and ultimately desperation that would accompany such a denial. Furthermore, it ensures that tensions within the society can be resolved in the light of open discussion, rather than being pushed out of the public sphere, to fester in darkness until those afflicted by them are driven to acts of lawlessness.

The marketplace of ideas arguments and the arguments about democracy that have dominated the legal discourse justifying protection of free speech in this country are alike in that they both treat speech as a means to an end and argue that it should be protected because it allows us to gain valuable things. The last line of argument about the worth of free speech that I will cover in this section approaches the matter differently, arguing that expression possesses intrinsic value for those who engage in it, and that it should be protected on these grounds. It is similar to the general libertarian belief that citizens should be free to act as they wish absent some compelling societal interest in preventing them from doing so, which is the basis for all free societies. Proponents of this view proclaim that individuals who wish to speak their minds should have that option and that it is not the government’s job to protect its citizens from hearing falsehoods or to tell them what views they should or should not espouse. Attempts to do so infantilize individuals and are an affront to their dignity as rational actors in charge of their own destinies (Smolla 1992, 9).

The most powerful advocates of this view go further, maintaining that expression should be given a higher threshold of protection than other human activities, because speech is more closely linked with the processes of thinking and feeling than any other human activity. James Madison equated the protection of freedom of speech with the protection of freedom of conscience because speech plays an important role in the processes though which we develop beliefs about the world (Richards 1999, 24-6; Smolla 1992, 10- 11). Others have pointed out that it is through the communicative acts that make our thoughts, feelings, and convictions known to those around us that we construct the social identities which determine who we are in relation to our fellow men and women (Moon 2000, 20-1). With this understanding of the value of expression in mind, it is easy to see why restrictions on free expression should be scrutinized carefully and limited to the greatest extent possible. They have the potential to interfere both with an individual’s ability to freely and fully form convictions about the world around them, and also to honestly and authentically live those convictions.

This understanding of the value of free expression has several things to recommend it. It justifies the protection of a broader range of speech than either of the two ends-based theories. Ends-based views of the value of free speech mandate protection only of that speech which contributes towards the successful attainment of the end. The danger of this approach is especially easy to illustrate in the case of the argument from democracy. At one time Meikeljohn argued that, because the point of protecting free speech was to ensure the proper functioning of democratic government, only that speech which was directly concerned with the work of government was worthy of protection (he abandoned this view after he was heavily criticized for proposing an understanding of freedom of speech which required no protection of art, education, or philosophy) (Smolla 1992, 15). An argument based on the idea that the freedom to speak is intrinsically valuable, on the other hand, offers a presumption of protection to nearly every communicative act, and does so because it is grounded in a view of expression that more accurately reflects the constitutive role that communication plays in human life.

Many who have written about freedom of expression have argued that one reason or another is the best justification for protecting expression, and that we should look to it exclusively when crafting our laws. This essay will not, because doing so creates a false and unnecessary dichotomy and runs the risk of excluding valid points from consideration. Each of these arguments is based on an understanding of one of the many valuable roles that speech can play in our society, and any or all of them should be taken into account in situations in which they are relevant. It is important that speech worthy or deserving of protection be protected. It is not important that the justification for that protection stem in every instance from the same basic argument.

The Liabilities of Unrestricted Expression

If expression’s only roles in society were the positive ones listed in above last section, its protection would arouse no controversy and a great many authors over the years would have had less to write about. Unfortunately, that is not the case. Expression is reflective of the men and women practicing it, and this sometimes seems more of a curse than a blessing. Communication can be a means by which the truth is concealed and selfish or unscrupulous individuals can pursue their own ends at the expense of societal welfare. It can reveal the earnest convictions of those whose views we find hateful, abhorrent, objectionable, or even merely annoying. It is not possible to honestly argue that speech should be protected without taking into account the potential unpleasantness to which rigorously protecting free speech leaves a society liable.

The great risk in allowing people to do whatever they want is that they may want to do something we would rather they not. Indeed, it is almost inevitable that at some point they will. The broader the range of freedom granted, the greater the magnitude of the objectionable action we risk condoning. In the case of speech, one of the most thoroughly protected realms of activity in most liberal democracies, and especially in the United States, this can translate into state-mandated protection of some truly miserable expression. Perhaps the most emotionally powerful instance of this is the protection of racist, hateful, and degrading speech. In protecting the right of citizens to give voice to their earnest convictions, free speech advocates have occasionally found themselves in the unenviable position of protecting the right of those who wish to publicly declaim abhorrent things. To make matters worse, this often occurs in the faces of those being denigrated, as occurred when the American Civil Liberties Union famously defended a group of Nazis seeking permission to hold a demonstration in the predominantly Jewish town of Skokie, Illinois.

And the emotional turmoil caused by exposure to unpleasant or objectionable speech, powerful as it is, may not be the greatest danger unrestricted speech poses for a democratic society. Protected speech can arguably be a threat to the very structure of democracy itself. There are in every social establishment those individuals who seek to subvert or overthrow the things that establishment represents, and they will necessarily communicate with others as they pursue their goals. In erring on the side of protecting speech, democracies run the risk of facilitating the efforts of people whose goals are contrary to the values that society stands for or even inimical to the society itself. The most obvious example of this sort of speech is the communication of a radical who advocates the abolition of democratic government. Some thinkers, usually those who justify the protection of speech primarily on the strength of its value to the processes of democracy, argue that this sort of speech shouldn’t warrant any protection, and in some countries (Germany, for example) it does not (Krotoszynski 2006, 118-30).

Finally, speech can be used to subvert the very things that make it valuable and worthy of protection. In societies that have known significant, deep-rooted historical inequality, some argue that degrading language from the dominant class intimidates and silences members of the traditionally oppressed classes to such an extent that it effectively destroys their access to the rights of speech, participation in society and government, and the pursuit self-fulfillment that are ostensibly being served by the protection of free expression. This occurs even when equal access to those same rights is legally protected. In the last few decades a number of academics and legal thinkers such as Mari Matsuda and Catherine MacKinnon have maintained that, in light of this, such degrading speech should be regarded as causing concrete harms that remove it from the realm of communication which is entitled to protected status (Glasser 1994, 3).

How Broadly Should Free Speech Be Protected?

This brings us to the question that democratic societies have wrestled with for as long as they’ve existed. Taking into account liabilities of free expression, such as those listed in the previous section, and arguments for its protection, like those in the section before that, what is the extent to which expression should be protected? Answering this question requires the weighing of costs and benefits. In any situation in which a question of free expression arises, members of the society must decide how much significance they ascribe to the benefits and harms protecting expression incurs and determine whether or not the costs outweigh the benefits. I propose that to this analysis should be added a pragmatic question: even if a speech act carries with it significant harms, can we be reasonably sure that proscribing it is a necessary and effective step to alleviating those harms, and that this act of proscription does not expose society to other, greater risks? Unless the answer to this question is yes, it should not be possible to make a successful case for the restriction of a speech act or form of speech.

It is easy and tempting for a life-long citizen of the United States of America to pre-empt most instances of cost-benefit analysis and argue for extremely broad protections of free speech on the strength of an a priori assumption that such protection is an essential component of liberal democracy. This is not the case. Western liberal democracies can and do maintain a broad degree of protection of basic freedoms and healthy democratic processes, while at the same time restricting speech in ways that would be unconstitutional in the United States. Indeed, the protection accorded to free speech in the U.S. is among the broadest in the world (Krotoszynski 2006, 214). This is because in some other countries the privileged designation of “preferred freedom” given to expression in the United States is conferred on other rights, such as equality in Canada, or dignity in Germany (26-7; 93- 4). In others, such as the United Kingdom, it is because firm legal mandates requiring the government to protect expression over other concerns were simply never written into law (183-5). Even in the United States, the high level of protection accorded to speech is a relatively recent development. In the days before the Civil War the southern states frequently and legally prevented abolitionists from expressing their views (Glasser 1994, 1). Between the Civil War and the First World War, the Comstock Act, an 1873 anti-obscenity measure, justified the seizure of 130,000 books, 194,000 pictures and photographs, and 60,300 “articles made of rubber for immoral purposes,” without successful challenge (Rosen 1994, 36). The passionate defenses of free speech penned by Justices Holmes and Brandeis were written in the early part of the twentieth century, shortly after the Supreme Court had first begun to regularly hear cases based on First Amendment challenges, and they were often as not recorded as dissenting opinions (Sunstein1993, 24-7). It was not until the mid-1960s that the current broad interpretation of First Amendment protections was firmly established (Krotoszynski 2006, 12). Despite this history, it would be foolish to maintain that the United States was not a healthy, free dom-loving democracy sixty years ago, just as it would be foolish to say that about Germany or Canada today. Broad protections of freedom of speech must be justified on their own merits.

Nevertheless, I will still argue that freedom of speech should be given broad legal protection, for two reasons. First, the various benefits that the right to free speech preserves for a democratic society are so valuable that only the most dire of harms will outweigh them. Second, restrictions on expression conceived of and administered by the government carry some very significant liabilities of their own.

I’ve already discussed the various arguments that are advanced in favor of freedom of speech, and will try not to waste time by repeating them here. I will, however, briefly re-emphasize the idea that protecting freedom of speech is analogous, in a very meaningful way, to protecting individual autonomy and liberty of conscience. In recent years support has grown among American academics and legal scholars for the proscription of hate speech, or vocalizations which denigrate others on the basis of some demographic difference. This stance represents a departure from the free speech advocacy that has traditionally been a hallmark of American liberalism, and some liberals have sought to explain this apparent reversal by maintaining that in the past protecting free speech was primarily a means to serve other interests, such as equality (Arthur and Shapiro 1995, 1; Brown 2004, 30). Stanley Fish writes that free speech is a “political prize,” a means to an end that, having been appropriated by conservatives and lost its power as a tool to advance liberal values, should be swiftly and guiltlessly abandoned in favor of other policy advocacies (Fish 1993, 43-5). Belief in the value of autonomy serves as a counterpoint to this means-based justification for the protection of free speech. One of the oldest and proudest cultural concepts of the United States is a belief in the value of individual liberty. Some modern liberals may interpret freedom as nothing more than a space to be filled with other values, but principled advocacy of liberty rests on the belief that individuals ought to be given that space to fill with convictions of their own choosing, rather than be coerced into sharing values collectively decided upon by society and enforced by the state.

A more pragmatic reason to be skeptical of speech restrictions enacted with the goal of correcting societal problems or elevating certain values is that state coercion is often an inefficient, ineffective, and error-prone method of pursuing social change. There is a good chance that it will not work, or will end up working in ways that the people who initially enacted it never intended. The specific way in which these formidable liabilities will manifest depends on the specific sort of speech being restricted and the goal these restrictions are intended to achieve. It would be impossible to discuss every instance in which governments have attempted to restrict speech in order to expedite social improvement, but restrictions on hate speech are a useful representative example that is contemporary and of special significance to multicultural democracies such as our own.

Ira Glasser, the former director the ACLU, writes that the current advocacy for restriction of hate speech was driven by frustration over the persistence of entrenched inequality in American society decades after equal rights were granted legislative protection during the Civil Rights movement of the 1960s (Glasser 1994, 15). They are justified on the grounds that speech acts that subordinate and marginalize minorities are inimical to the establishment of equality and so should be restricted. They rest on the reasonable belief that the autonomy of racists is less important than the promotion of equality. The question of relative value will have to be answered elsewhere, but the pragmatic question remains: will banning hate speech eliminate racism? If the societies in which such speech is currently banned are any indication, it will not. In Germany, Nazism, anti-Semitic speech, and Holocaust denial have been illegal since the late 1940s, and yet these ills persist (Krotoszynski 2006, 131). Banning racial defamation in 1965 did not eliminate racial tension in the U.K. (Gates 1994, 43). And one Canadian author bemoans the persistence of racial supremacist groups in Canada, even as he notes that their activities are prohibited and maintains that “it is a contradiction of terms to speak of the coexistence of racial supremacism and social democracy in Canadian society” (Li 1995, 2). This should not be surprising. Speech may be one of the mechanisms through which racism manifests, and even through which it is perpetuated, but it is hardly the only one. The same Canadian author goes on to admit that racism is the result of any number of social factors and that it is frequently deeply institutionalized (Li 1995, 6-7). Speech proscriptions do not change these underlying social factors, nor do they comprehensively attack institutional racism. We cannot even reasonably expect them to eliminate racist speech, at least not any more successfully than laws against speeding or illicit drug use successfully eliminate those activities.

Laws against racist speech may not eliminate racism and inequality, but this does not mean that they are without effects. For example, they can unintentionally curtail legitimate discussion of ideas that happen to be controversial in the wrong way. When the University of Michigan enacted a speech code restricting speech that “stigmatizes or victimizes” individuals on the basis of “race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran statusÉ” they were sued on free speech grounds by an anonymous graduate student. The student, who specialized in biopsychology, was a teaching assistant in a psychology class on comparative animal behavior. He worried that he would be open to prosecution under the speech code for attempting to lead classroom discussion about theories that postulate a biological basis for the mental abilities of male and female human beings. On the grounds that the code was vague and overbroad, and because there had already been an instance in which a student was subject to disciplinary action for an “offensive” statement made in the context of a classroom discussion, the Court ruled that his complaint had merit (Arthur and Shapiro 1995, 114-121).

Author David Richards points out that laws against hate speech, in addition to potentially suppressing peripheral discourse of the sort the teaching assistant wished to engage in at Michigan, detract from the quality of the discourse about race and racial equality itself. As he put it:

Majoritarian judgements of group harmÉmandate a kind of orthodoxy of appropriate tribalization in the terms of public discourseÉthis empowers the state to determine not only what discourse is properly respectful and what not, but what groups are entitled to such protection and what are not. But such state-enforced judgments introduce stereotypical political orthodoxies as the measure of human identity, thus removing from public discourse precisely the contest of such stereotypical boundaries that a free people often most reasonably requires, in particular, persons afflicted by a pervasive culture of structural injustice (Richards 1999, 135).

Category-based speech restrictions necessarily require the codification and legal institutionalization of those categories, an approach which is incapable of accurately reflecting the complex realities of human existence. Outlawing racist speech will not eliminate it, but it will drive it underground, and away from the public discussion that would expose it to unsympathetic ears who might attempt to disabuse its proponents of their flawed beliefs, and ensure that the only people who hear racist speech are those who agree with it and whose beliefs will be reaffirmed by it. Such laws can even, by granting absurd and abhorrent notions the status of a threat worthy of official suppression, give legitimacy to racist views that they would otherwise lack. As Richards observes, “Holocaust denial and related laws, ostensibly directed at structural injustice, only further entrench it, not least by a shallow political symbolism that, in apparently condemning such evils, distracts from the deeper reasonable inquiry into the history and culture of European structural injustice” (Richards 1999, 164).

Finally, restrictions on racist or derogatory communication can be turned into weapons against the very people they were intended to benefit. This is because, as Ira Glasser points out, these restrictions will be enforced by the institutions of the establishment, which perpetuates injustice in the first place (Glasser 1994, 7). During the year in which the University of Michigan’s speech code was in force, twenty charges of racist speech, including the only two resulting in disciplinary action, were levied by whites against blacks (Glasser 1994, 8; Gates 1994 45). It should come as no surprise that the power to silence is more potent in the hands of the dominant group than in those of its subordinates.

In a perfect world every measure intended to improve society would work exactly as it was intended, but that is not the world we live in. Attempting to solve a complex social problem, such as persistent inequality, by restricting speech is as ineffective as it is simplistic. In light of this, and because such restrictions necessarily require the sacrifice of one or more of the powerful benefits that protecting speech gains for a democratic society, it seems clear that the primary duty of a democratic government with regards to free speech is to grant it broad legal protections and enforce them vigorously.

Obligations of Free Speech

While broad governmental protections for free speech are best for a multicultural democracy, that should not be the end of the story. The persistence of structural injustice is a real and significant problem in multicultural democracies such as our own, and the approach of citizens to communication does have a role in its perpetuation or resolution.

One risk of broadly protecting offensive speech is that individuals may interpret this as a societal mandate endorsing speech that degrades others. To put it lightly, this is not a desirable occurrence. While government restrictions are too cumbersome and prone to corruption to effectively prevent racist speech without unacceptably compromising individual liberty, this does not mean that nothing can be done. A strong cultural understanding that rights are accompanied by responsibilities and an aversion to speech that is recklessly or needlessly offensive to others could do a great deal to mitigate that risk. I do not believe that such an aversion exists in this country, but it should.

Such an approach to expression was nicely articulated last year by South African writer Kristina A. Bentley. While analyzing an article written by the black vice-chancellor of a university that compared some white male South Africans to baboons, she suggested that the broad boundaries of our rights are perhaps not the only boundaries we should heed where speech is concerned. Perhaps, instead, we should regard speech as something that entails responsibilities or moral duties as well as rights and conduct ourselves accordingly. As an exemplar of this approach to freedom of speech, she cited John Stuart Mill, a famous proponent of the right to free expression who nonetheless severely castigated a contemporary for publishing a racist article defending slavery. Mill’s criticism stemmed from his worry that the article, published as it was when America was poised on the brink of Civil War, would encourage the southern states to press the issue. Bentley used this instance, in which a powerful advocate for free speech maintained that citizens should restrain themselves from speaking in ways that are likely to be detrimental to society, to illustrate the idea that we can have a duty when it comes to expression that goes beyond the minimal restrictions levied on us by the contours of our right. She argued against attempting to back this obligation with the force of law because she worried that that doing so would destroy the public discussion of racism without solving the problem, but maintained that it should nonetheless be a culturally and socially valued motive force in our lives (Bentley 2006, 31-44).

This approach to reconciling the harms and benefits of speech seems very attractive. Cultural mores can certainly have a profound influence on individual behavior but, because they are ultimately voluntary and open to individual interpretation, they lack the bureaucratic and coercive elements that make legislative speech restrictions a poor choice. Virtues such as civility, courtesy, and, especially important in a multicultural democracy, understanding of and respect for the backgrounds of others could, given sufficient cultural impetus, dramatically improve the public discourse and private life in a democratic society (Jaggar 2000, 40-4).The strength of these concepts is not particularly great in the United States, and it would almost certainly improve the quality of our democracy if that were to change.

A Commitment to Freedom, A Dedication to Decency

Professor Frederick Schauer observes that “Rights are constitutional in the familiar sense, but also…are constitutional in the sense that they constitute who and what we are” (Krotoszynski 2006, 185). It is for this reason that I have argued for the broad protection of freedom of speech in this essay. Regulating speech is nearly tantamount to regulating thought, and much of this country’s greatness comes from its willingness to allow anyone to think, and by extension speak, as they wish. This is, in its own way, a powerful commitment to equality. It takes courage to grant such freedom, and even more courage to maintain it during those times when it has unpleasant and frightening results. As Richards writes, “Our principles are, I believe, best and most reasonably affirmed when we resist the temptation to respond to bigots in kind and insist on embracing them in an inclusive moral community that recognizes in all persons what some of them might willfully deny to others, the equality of all persons as free and reasonable members of a political community of principle” (Richards 1999, 150).

And yet if we are to realize the full potential of our multicultural democracy there is more to do. Broadly protected free expression gives us the power to shock, hurt, and appall each other without fear of reprisal. If we wish to live in the greatest society we possibly can, we should voluntarily refrain from harming others through speech or any reason other than absolute necessity. The raw power of our right should be tempered by a commitment to civility and mutual respect more powerful than the one that we currently possess. Democracy has been called “a fighting creed,” but it does not need to be a bar room brawl, and it should not be (Jaggar 2000, 29).

Let our laws demonstrate that we are not afraid of hateful, offensive, or disturbing declarations. Leave the work of demonstrating that they do not have any place in our society to our words and action. This two-part approach to free speech would serve our democracy well. It could, I believe, produce a society that is truly great.

References

Arthur, John and Amy Shapiro, eds. 1995. Campus Wars: Multiculturalism and the Politics of Difference. Boulder: Westview Press.
Beckwith, Francis J. and Michael E. Baum, eds. 1993. Are You Politically Correct? Debating America’s Cultural Standards. Buffalo: Prometheus Books.
Bentley, Kristina A. 2006. If Baboons Could TalkÉJ.S. Mill on Freedom of Speech and the Limits of Racial Discourse. Politikon 33, no. 1: 31-44.
Brown, Rebecca L. 2004. Confessions of a Flawed Liberal. The Good Society 14, no. 1: 30-4.
Chambers, Simone and Anne Costain, eds. 2000. Deliberation, Democracy, and the Media. Boulder: Rowman & Littlefield Publishers, Inc.
Darbishire, Helen. 1994. Free Speech—Democracy’s Watchdog. UNESCO Courier March:18-22.
Ebadi, Shirin. 2006. Democracy Demands Free Speech. Global Agenda 4, no. 1: 50-1.
Gates Jr., Henry Louis et al. 1994. Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. New York: New York University Press.
Glasser, Ira. 1994. Introduction. In Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights, and Civil Liberties. New York: New York University Press.
Ivers, Gregg and Kevin T. McGuire eds. 2004. Creating Constitutional Change. Charlottesville: University of Virginia Press.
Krotoszynski Jr, Ronald J. 2006. The First Amendment in Cross-Cultural Perspective: A Comparative
Lapham, Lewis H. 2004. Gag Rule. New York: The Penguin Press.
Li, Peter S. 1995. Racial Supremacism Under Social Democracy. Canadian Ethnic Studies 27, no. 1: 1-17.
McChesney, Robert W. 2004. The Meiklejohn Challenge. Journalism and Mass Communication Education Spring: 24-30.
Merriam-Webster, Inc. 2007. Merriam-Webster’s Dictionary of Law. http://www.dictionary. com/browse/speech.
Moon, Richard. 2000. The Constitutional Protection of Freedom of Expression. Toronto: University of Toronto Press.
Richards, David A. J. 1999. Free Speech and the Politics of Identity. New York: Oxford University Press.
Rosen, Jeffery. 1994. The Limits of Limits. New Republic 7 February, 35-8. Smolla, Rodney A. 1992. Free Speech in and Open Society. New York: Alfred A. Knopf. Sunstein, Cass. 1993. Democracy and the Problem of Free Speech. New York: The Free Press. Westheimer, Joel. 2006. Diverse, Noisy Democracy. Phi Delta Kappan 7 November, 242-5. Wohl, Alexander. 1994. Sticks and Stones. ABA Journal 80, no. 2: 109-10.