/ Dispelling Myths about Free Speech Subscribe

There is a lot of talk about freedom of speech lately. For starters, some say it is under attack in the academy, the very place where it ought to be most valued. So-called “politically correct” culture is alleged to silence conservative voices and limit open debate. If this is true, it’s a bad thing. Others are concerned that free speech has been co-opted by reactionary social movements so that what ought to be a bedrock principle of a liberal and egalitarian society is instead functioning as a protective device for racist rants and xenophobic tirades. If this is true, it too is a bad thing.

What gives? I will not try to settle these complex issues here. Instead, I will identify and dispel four widespread but false beliefs about freedom of expression. My hope is a simple one: once these myths are recognized as such and thus set aside, more productive discussions will ensue.

Myth Number One: Free Speech Means No Speech Regulation

A commitment to free speech, even a robust one, does not mean that we cannot regulate speech. On the contrary. We can, do, and should. We regulate criminal solicitation, insider trading, price fixing, and defamation, just to name a few kinds of regulated speech. Clearly, a commitment to free speech does not prohibit all speech regulation. Rather, it makes it more difficult (but not impossible) to regulate speech. A commitment to free speech means that we value speech in a way that requires its regulation to meet a higher bar for its justification. That is all it means.

Myth Number Two: It’s about Offense

Debates about the free speech status of some category of speech (say, for example, racist hate speech) do not rest on alleged facts about how offensive such speech is. Offense is not the issue. Harm is.

Offense and harm are not the same. To be offended is to feel something; to be harmed is to be made worse off. Offense is a subjective inner feeling; harm is an inter-subjective and quantifiable state. Offense is subjective and thus intractable. Just about anyone can take offense at just about anything. Harm, by contrast, is measurable. It can also be physical, financial, or psychological.  

When the discussion is about justifying the regulation of some category of speech, the discussion is about harm and not mere offense. This is because the only legitimate justification for the state to interfere with individual liberty is to prevent harm. Thus, those who argue that further speech ought to be regulated do so based on the harms associated with the speech in question. To characterize the issue in terms of offense is thus to mischaracterize it. Furthermore, it is to do so in a way that undermines both the plausibility of the argument for further regulation and the seriousness of the issues.

Myth Number Three: It’s Censorship

Supporting further speech regulation is not tantamount to censorship. As we have seen, arguments for speech regulation are harm-based. Regulating some category of speech is justified so long as that category of speech is harmful enough to meet the higher bar required. When speech is regulated then, it is regulated because of the associated harms, not because of the content expressed.

An example might help. Suppose that I falsely claim that Joe is a pedophile; I know that this is false, and Joe’s wife divorces him because she believes me.  In this case, my defamatory utterance is actionable. Had no one believed me, however, the very same utterance (expressing the very same content) would not be actionable. Thus, it is not the expression of the content doing the work here. The justification for regulating the utterance is based on how harmful that utterance happens to be.

Thus, by regulating harmful categories of speech, we are not willy nilly regulating the expression of viewpoints that happen to be unpopular. Rather, we are preventing harm. Consequently, speech regulation does not amount to censorship.

Myth Number Four: Voicing Disagreement Violates the Right to Free Speech

Voicing disagreement does not violate the right to free speech; it exercises it. Suppose, for example, that Sam says that all obese people should stay indoors because he does not want to have to see them. Suppose further that I forcefully object to Sam’s statement. Sam may be angry, confused, stressed, embarrassed, and refuted by what I say but his right to free speech has not been violated. He exercised his right to free speech and then I exercised mine. In a nutshell, the right to free speech protects one from illegitimate state interference with one’s communications; it does not guarantee that one’s peers will refrain from objecting to what one says.

Now that these four free speech myths have been set aside, we are free to discuss the real issues. Is racist speech uttered in public places harmful enough to warrant legal intervention? Does the culture of higher education systematically interfere with the communicative capacities of conservatives on college campuses? Let's discuss.

Mary Kate McGowan is the Luella LaMer Professor of Women’s Studies as well as Professor of Philosophy at Wellesley College. Her recent work explored the possibility that more speech than we realize (e.g., some pornography and racist hate speech) enact norms constitutive of harm. This possibility could even have free speech implications for these harmful categories of speech.