All Commentary
Friday, September 1, 1995

Speaking Freely

Persons Must Be Free to Express Their Opinions

To be a moral agent, wrote Milton in his Areopagitica, a person must be free to choose; and to make moral choices persons must be free to express their opinions. Milton held, writes Calvin Massey in this anthology, “that by tolerating abhorrent and hateful speech, we are able to see more clearly our societal biases and thereby hasten the process by which we purge ourselves of hidden intolerance.”

Mill’s On Liberty (1859) was another classic paean for freedom of speech and discussion. For the truth about a subject to be known, he said, it must be freely and openly discussed without fear of penalty: there should be no censorship of ideas by government, especially of those opposed to the State itself. As a utilitarian, Mill believed that concealment of the truth was, in the long run, always counterproductive. Many have argued that Mill was mistaken: that some truths should remain concealed for the public good, particularly in the midst of inflammatory controversy when feelings run high. To take a contemporary example, assume that it is true, as Murray and Herrenstein allege, that the average I.Q. of African-Americans is somewhat lower than that of Caucasians and Asians. Many critics would say that this is not true, but others would say that even if it were true it should not be generally known, since it might have a deleterious effect on the morale of blacks. Mill would undoubtedly have reminded us of the long-term effects of such a policy, as is done eloquently in Millean fashion by Professor Massey:

“The intolerant impulse—banning such racist speech—may have counterproductive long-term results, for it enables the dominant society to tell itself (smugly and falsely) that, collectively, it has no problem: the problem lies wholly with those nasty racists whom we have righteously muzzled. Thus, the nastiness of racist epithets serves to remind us all that there is a substantive nastiness in our society that we have yet to eradicate. Better that the truth of our condition be painfully revealed to us than that we live in delusion that racial equality has been achieved by virtue of painting over the ugliness. In the honesty of the revelation we may ultimately create more real tolerance and respect for diverse groups than by pretending that silence passes for respect. . . . The dangerous dog of racism is still a biter when muzzled.”

There are of course occasions on which speech is prohibited: false advertising, defamation, confiding secrets to enemy nations, and so on. (Whether these are compatible with the words of the First Amendment is still a matter of controversy.) But there is one particularly difficult area, speech that incites to violence or riot. A union agitator walks into a factory filled with angry striking workers, and says “Torch the factory!” (This is Mill’s example.) Mill would have him stopped to avoid a riot. This opens up a problematic area in the free-speech controversy; when are words to be considered inciting?

The First Amendment simply says that Congress shall pass no law abridging freedom of speech or of the press; it doesn’t add “unless the views expressed are offensive” or “unless the audience is so agitated that they might take action.” Taken on its face, this would permit defamation and conspiracy, which the courts have regularly prohibited.

In any case, there are many groups today who would prohibit much more than libel or espionage; they sometimes allege that racial slurs are an incitement; usually they want the words banned from public discourse because “they are false,” or because the effects of permitting their dissemination would be counter-productive on utilitarian grounds. (As a rule they assume without proof that what they want to censor is false, and devote their energies to describing the ill effects of allowing the speech to occur. But they do not always make the distinction between truth and utility.)

To this end, the authors of this anthology cite many examples of “politically incorrect” speech, especially in academia, for which a student may be penalized, expelled, or subjected to “re-education seminars” Soviet style. There are many examples of this, and many are regularly found in conservative student publications. Here is one example, described in detail in the book. From Van Alstyne’s essay we learn that in one university (one infers from the author’s title that it is Duke) a code is enforced by which “no member of the faculty, student body, or staff shall engage in any verbal conduct that renders the environment on campus or some part thereof, offensive. This rule shall apply, however, only if the verbal conduct is of a sexual, religious, racial, or other nature reflecting an improper or unreasonable attitude toward others according to the common standards of the university community.”

The authors of the essays in this anthology are unanimous in condemning all such procedures. For example, in a brilliant essay Robert Sedler argues that all bans on campus speech, however incendiary or hateful, run afoul of the First Amendment. For one thing, the Supreme Court has never recognized any exceptions to the rule that the government cannot regulate expression in such a way as to favor one viewpoint over another: this is the principle of content neutrality, and was the basis for the Court’s invalidation of bans on flag desecration. For another, the First Amendment “forecloses any justification for a restriction on expression on the ground that the expression is offensive. . . . The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

When the Duke University committee had crafted their rules of campus behavior, they were apparently satisfied with the result—“except,” writes Van Alstyne, “for a small lingering group off in one corner—who thought they caught a slight whiff of diesel fumes, and a slight sound, as of tanks clanking, as in some far-away deserted square” (Tiananmen Square). It was the dread of such an appalling prospect that inspired this collection of essays. It is an extraordinarily fine collection; but will the relevant academicians read it? Will the courts? []

Dr. Hospers is professor emeritus of philosophy at the University of Southern California.