‘New’ justifications for censorship are never really new: Part 11 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• Part 6: Is free speech outdated?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Assertion: Free speech is an outdated idea and it’s time for new thinking. 

Nadine Strossen: “New thinking” is always timely about any topic, certainly including free speech.  But that premise raises the following conundrum: Could we engage in any thinking — particularly new thinking — without free speech? As the Supreme Court observed in 2001,  “speech must be protected from the government because speech is the beginning of thought.”

Freedom of speech has repeatedly been championed by succeeding new generations, in every kind of political system, and in every culture.

Yes, we should constantly examine and re-examine the idea of free speech, and the arguments that weigh in favor of and against it — including the argument that free speech is an essential prerequisite for this very process. No less prominent a free speech champion than John Stuart Mill maintained that all ideas should be constantly questioned and debated, no matter how firmly one adheres to them. I always welcome the opportunity to explore arguments against free speech, including the argument in this Assertion. So far, though, my continuous reconsiderations have continued to convince me that free speech is a far better idea than the alternative of censorship, and that free speech is hardly “outdated,” but rather of ongoing importance. More importantly,  this same conclusion has been reached repeatedly by innumerable, multifarious individuals, even at great personal cost, as I discuss below. 

Far from being “an outdated idea,” free speech is instead a timeless idea, which has withstood constant counterarguments and repressive efforts, throughout history and around the world. Freedom of speech has repeatedly been championed by succeeding new generations, in every kind of political system, and in every culture. It is protected in the constitutions and other governing charters of countries worldwide, including those that were the most recently adopted. Freedom of speech is also enshrined as a fundamental, universal human right in the Universal Declaration of Human Rights and also the International Covenant on Civil and Political Rights, to which a full 178 countries are parties out of the 193 U.N. member states. Furthermore, freedom of speech is enshrined in the foundational regional human rights treaties for Europe, the Americas, and Africa (there is no comparable Asia-wide treaty). Notably, even governments that do not protect free speech in practice nonetheless feel the need to profess fidelity to it, in an effort to attain legitimacy in the eyes of the world, as well as their own citizens.  

Also noteworthy — as well as inspiring and heartbreaking —  is how many courageous human rights activists are willing to risk their safety and even lives for freedom of speech. In 1989, Iran’s Supreme Leader Ayatollah Khomeini issued a fatwa (an official Islamic law ruling) against author Salman Rushdie, decrying passages in Rushdie’s 1988 novel, “The Satanic Verses,” as “blasphemous against Islam.” The fatwa offered a large bounty to anyone who assassinated Rushdie, thus forcing him to go into hiding for nine years. Rushdie memorably responded to those who questioned the importance of the free speech that had both jeopardized and severely constrained his life: “Free speech is the whole thing, the whole ball game. Free speech is life itself.” More recently, speaking from his prison cell upon receiving the Nobel Peace Prize in 2010, Chinese human rights activist Liu Xiaobo eloquently described this precious freedom, for which he had sacrificed his physical liberty: “Free expression is the foundation of human rights, the source of humanity, and the mother of truth.”

Greg Lukianoff: First of all, censorship is a far older idea, as old as our species; free speech is comparatively the “new kid on the block.” As Nat Hentoff once wrote, quoting former Los Angeles Times editor Phil Kerby, “Censorship is the strongest drive in human nature; sex is a weak second.” See: “Free Speech For Me—But Not For Thee,” by Nat Hentoff. You can see arguments justifying censorship going back as far as written records exist. We can therefore assume that it goes back even further than that. Indeed, the founding myth of classicism is the execution of Socrates for his “corrupting the youth” and “blasphemy,” detailed in Jacob Mchangama’s excellent new book, “Free Speech: A History from Socrates to Social Media.” Indeed blasphemy is one of the oldest arguments for censorship, right alongside lèse-majesté (insulting the ruler), treason, sedition, and libel.

While the ancient Greeks made a lot of arguments in favor of their recognized forms of free speech, it shouldn't come as a great surprise that freedom of speech wasn’t as discussed and valued between the time of the fall of the democratic city-states and the advent of the printing press. After all, if you can’t reach most people by any means, arguments for freedom of speech have very little practical meaning. But as soon as widespread dissemination of ideas was possible, advocates for “freedom of the press” cropped up everywhere. 

Truly robust protection for freedom of speech was a long time in the making, and stood in stark contrast with older forces of conformity, conservatism, dogmatism, and religiosity. In other words, freedom of speech has mostly been the exception throughout history, and has only become both legally and culturally powerful, even in the United States, in the last century. Though the First Amendment was passed in 1791, it was not until 1925 that freedom of speech was strongly interpreted as having real meaning for the United States, and it was not until the late 1950s that this freedom was consistently protected.

One thing that can be very frustrating to the first amendment defender is how often we hear age-old arguments about free speech and censorship being brought up as if they are new or innovative. Among the most frustrating is the assertion that speech is indistinguishable from violence because it either causes stress or psychological harm. (For more on this, read “Part 1” of this very series.) This is a very old idea, and is arguably the moral intuition that undergirds cultures that emphasize the preservation of honor, and which prescribe that slights against one’s honor should be dealt with by duels or honor-killings. Indeed 19th century slave owners including John C. Calhoun  even argued that the arguments of abolitionists were offensive to their dignity.

One thing that can be very frustrating to the first amendment defender is how often we hear age-old arguments being brought up as if they are new or innovative.

The arguments for censorship are almost all extremely old, but many of the arguments for freedom of speech are new and constantly evolving. Despite his oft-misrepresented footnote mention of “the paradox of tolerance” (more on this in a future article), Karl Popper was an innovative thinker about freedom of speech, as was Lenny Bruce, and as is Jonathan Rauch, Jonathan Haidt, and the many people synthesizing free-speech arguments with law, history, and the latest psychological and sociological research. For a recent novel argument for freedom of speech, check out Amna Khalid and Jeffrey Snyder’s excellent Chronicle piece on “inquiry” as the telos of higher education. (For a broader list of books about free speech, check out my reading list.) 

Another compelling argument in favor of free speech is how the establishment of norms of dissent in cockpits and operating rooms have led to dramatic improvements in the safety of both surgery and airline traffic.

Indeed, as we watch voices silenced in China, Russia, and Turkey, (see FIRE’s recent ad featuring NBA player, Turkish exile and outspoken free speech advocate, Enes Kanter Freedom) we are seeing this all repeat. On campus, however, it can be easy to miss that arguments for free speech are getting better, not worse, everyday. If free speech is such an obvious good and is particularly important to the discovery of new ideas, why does it seem to be in decline on college campuses, with over 530 professors facing cancellation since 2015? (See my article in the Washington Post with Adam Goldstein on the case of Professor Ilya Shapiro at Georgetown for some recent data.) 

It’s in part because, as Jonathan Haidt recognizes, a lack of viewpoint diversity can lead to morally homogenous communities that tend to see disagreement as threat. However, as Jonathan Rauch points out, viewpoint diversity and disagreement are necessary for progress to be made. Freedom of speech doesn’t work if people are afraid to speak their mind or even play devil’s advocate.