Is free speech outdated? Part 6 of answers to bad arguments against free speech from Nadine Strossen and Greg Lukianoff

In May 2021, I published a list of “Answers to 12 Bad Anti-Free Speech Arguments” with our friends over at Areo. The great Nadine Strossen — former president of the ACLU from 1991 to 2008, and one of the foremost experts on freedom of speech alive today — saw the series and offered to provide her own answers to some important misconceptions about freedom of speech. My answers, when applicable, appear below hers.

Earlier in the series:

• Part 1: Free speech does not equal violence
• Part 2: Free speech is for everyone
• Part 3: Hate speech laws backfire
• Part 4: Free speech is bigger than the First Amendment
• Part 5: You can shout ‘fire’ in a burning theater
• Part 6: Is free speech outdated?
• Part 7: Does free speech assume words are harmless?
• Part 8: Is free speech just a conservative talking point?
• Part 9: Free speech fosters cultural diversity
• Part 10: Why 'civility' should not trump free expression
• Part 11: ‘New’ justifications for censorship are never really new
• Part 12: Free speech isn’t free with a carveout for blasphemy
• Part 13: Does free speech lead inevitably to truth?
• Part 14: Shouting down speakers is mob censorship

Assertion: The arguments for freedom of speech are outdated.

Nadine Strossen: The arguments both for and against freedom of speech continue to involve the same eternal, fundamental issues of principle that have been debated throughout history: why free speech is important, and how to draw the appropriate line between protected and punishable speech. For one compelling account, see Jacob Mchangama’s forthcoming book releasing later this month: “Free Speech: A History from Socrates to Social Media.” Ironically, one of the consistently recurring issues concerns the regularly repeated claim that changed societal circumstances — in particular, new communications technologies — have made established free speech principles obsolete.

To be sure, changing factual developments are pertinent in evaluating how free speech principles should be enforced in particular circumstances. Whether certain speech directly threatens imminent, serious harm that can’t be averted without restricting the speech — hence justifying the restriction under modern free speech principles — depends on the factual details surrounding the speech. For example, new technology may facilitate “deepfakes” that could be restricted as defamation or fraud, whereas such restrictions might not be warranted for less sophisticated false communications, because deepfakes are more likely to mislead reasonable viewers.

The recent surge in social justice activism has depended on robust free speech.

In contrast with the changing factual circumstances to which free speech principles and rationales are applied, what is the basis for claiming that these underlying principles or rationales themselves should be changed? Experience around the world and throughout history demonstrates that when a government has been granted more discretion to restrict speech than under the current speech-protective principles, it predictably wields that discretion disproportionately to the disadvantage of minority views and voices. Far from being outdated, the current principles are more important now than ever, so that traditionally marginalized people and perspectives are vigorously protected. The recent surge in social justice activism — along with all other movements for greater equality and inclusivity throughout history — has depended on robust free speech, and would be impeded by rollbacks of such freedom based on the claim that they are somehow “outdated.”

Just as modern speech-protective principles stand the test of time, the same is true of the classic rationales for free speech, which recognize its crucial and enduring role in promoting the search for truth, democratic self-government, and individual autonomy. Surely these goals themselves are not outdated, nor is the reason for preferring free speech to censorship (beyond the limited circumstances permitted by contemporary speech-protective principles) as a vehicle for pursuing them: free speech will not necessarily secure such goals, but censorship will necessarily undermine them.

Those who criticize freedom of speech correctly note that it does not guarantee that truth will ultimately prevail in the proverbial “marketplace of ideas.” What such critics generally fail to note, however, is what censorship does guarantee about the search for truth: under a censorial regime, any truth that challenges government policies or officials is especially unlikely to prevail. Historically, governments have wielded censorship power precisely as one would expect: to suppress speakers who dissent from current orthodoxy and advocate reform – from abolitionists through Black Lives Matter activists. This pattern, which constitutes an important reason to support freedom of speech, is no more “outdated” than any other pro-speech rationales. For example, all over the country, BLM protesters, as well as journalists who cover them and legal observers who seek to protect their rights, have been subject to unwarranted suppression. No wonder so many leading crusaders for racial justice and other human rights causes have celebrated free speech and decried censorship.

Under a censorial regime, any truth that challenges government policies or officials is especially unlikely to prevail.

Likewise, it is hard to fathom what reason could support the claim that free speech’s essential role in facilitating democracy is somehow “outdated.” As the Supreme Court declared, freedom of speech about public affairs entails “more than self-expression; it is the essence of self-government.” Even though freedom of speech shields some expression, such as disinformation, which may adversely impact our democracy, government censorship of such speech (beyond the strictly limited categories of false factual statements that are now punishable) is diametrically antithetical to democratic values. As the Supreme Court explained in a 2000 decision: “The Constitution exists precisely so that . . . judgments [about debatable matters] . . . can be formed, tested, and expressed. . . . [T]hese judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

Finally, it is difficult to imagine why freedom of speech might even arguably be outdated as a means to promote individual autonomy. Echoing esteemed philosophers, the Supreme Court repeatedly has recognized that free speech has intrinsic value as an essential prerequisite for individual self-actualization, in addition to its key instrumental roles in promoting truth and self-government. As the Supreme Court stated in a 2000 decision, “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

In sum, for all its shortcomings and risks, freedom of speech is far more effective than censorship in advancing truth, democracy, and individual autonomy – not to mention all other human rights. It is the anti-free-speech arguments that are outdated. Those arguments are not only outdated today; they have been wrong every one of the many times they have been made throughout history, including in response to every new communications technology, dating back to the printing press.

Greg Lukianoff: John Stuart Mill’s central arguments in “On Liberty” remain undefeated, including one of his strongest arguments in favor of freedom of speech — Mill’s trident — of which I have never heard a persuasive refutation.

Mill’s trident holds that, for any given belief, there are three options:

1. You are wrong; in which case freedom of speech is essential to allow people to correct you.
2. You are partially correct; in which case you need freedom of speech and contrary viewpoints to help you get a more precise understanding of what the truth really is.
3. You are 100% correct. In this unlikely event, you still need people to argue with you, to try to contradict you, and to try to prove you wrong. Why? Because if you never have to defend your points of view, there is a very good chance you don’t really understand them, and that you hold them the same way you would hold a prejudice or superstition. It’s only through arguing with contrary viewpoints that you come to understand why what you believe is true.

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