Public debate on the status of "free speech" seems to ebb and flow frequently in the US. In a spate of recent op eds and analyses, this debate has focused on campus "restrictions on speech" in the name of civility. Here is a representative piece published in the NYT. This latest cycle of the debate has framed the issue as "conservative" or "libertarian" defenders of unfettered free speech against "liberal" promoters of civility and opponents of hate speech and bullying. Along the way, the important ideal of free speech - the civic goal worth caring about - has been lost and this strikes me as a paradigm case in which philosophers could be of great public value were they to get out there and join the public debate.
So conceived as a positive freedom, free speech requires quite a few conditions for it to flourish: lack of constraint to be sure, but also education, and a host of conditions constitutive of social uptake. Speech, in its most central sense, is a communicative act. In the case of political speech, the relevant positive freedom is to make arguments, provide evidnece, express proposals that will be taken seriously, seen as challenges to incompatible positions, and ultimately influence behavior and policy. Political speech that is given uptake by no one, is not taken by anyone as having any normative significance for what they should do or believe, is more aptly characterized as noise. It may be noise that happens to conform to the syntax and semantics of a natural language, but it is "speech" only in an attenuated and derivative sense. And more important ot the present point, it is "speech" the freedom to which should matter to no one. If the goal of protecting free speech were to be to make it possible for people to stand alone in closed rooms and give "speeches" that no one heard or cared about, it would be a goal worth giving up.
Now in debates on free speech, governments are - as is often the case - elephants in the room. They have more power to actively constrain speech than any other institution in society. So as an adjunct to valuing positive freedom to engage in rational discourse, a restriction on government's ability to constrain speech has been valued by everyone from the ACLU to the CATO institute. But along the way, the positive point of this negative freedom from constraint of speech seems to have been lost in the mainstream discourse. It is no longer about preventing government intrusion into open rational debate. Rather, it is about preventing government intervention into semantically conforming noise. So allowing corporations to spend billions financing patently irrational mass advertising that drowns out debate, and structuring national spectacles that effectively preventing third parties from so much as being noticed by the bulk of the country is taken to be supportive of free speech. Shouting hatred at mourners at a funeral is taken to be an instance of free speech, but the press utterly ignoring crucial issues is not seen as a threat.
On another front, we have this comment from the NYT op ed by Greg Lukianoff linked above: "Some elite colleges in particular have Orwellian speech codes that are so vague and broad that they would never pass constitutional muster at state-financed universities. Harvard is a particularly egregious example. Last year, incoming Harvard freshmen were pressured by campus officials to sign an oath promising to act with "civility" and "inclusiveness" and affirming that "kindness holds a place on par with intellectual attainment." Harry R. Lewis, a computer science professor and a former dean of Harvard College, was quick to criticize the oath. "For Harvard to 'invite' people to pledge to kindness is unwise, and sets a terrible precedent," he wrote on his blog. "It is a promise to control one's thoughts." "
There are two issues run together here. On the one hand, it is absurd to suggest that pledging to show civility, inclusiveness, or kindness is opposed to free speech. Indeed, if speech is understood in the important positive sense, these seem generally to be necessary conditions upon free speech. Are we going to have inclusive rational debates if people are generally cruel, uncivil, and exclude others? Communication requires that we take one another seriously, and care about one another's opinions. So the dismissal of these virtues - presenting them as opposed to freedom of speech - is a symptom of the degradation of discourse around speech, of the rise of negative freedom at the expense of positive.
On the other hand, I there is something right in calling such codes "Orwellian," but it is not because of what is said, but because of who/what is saying it. What is worrying about this pronouncement is that it comes from the Harvard University administration, which in the local context is by far the most powerful institution around. And it is indeed troubling to see any powerful institution issue and threaten to enforce simplistic rules regarding what speech is permissible. (The article goes on, in rather predictable fashion, to list a series of anecdotes about ways such codes have been enforced.) But look again at how the dialectic goes when we argue back and forth over such codes: we have one side defending civility and therefore the legitimacy of university administrations enforcing speech codes, and the other defending free speech, and therefore the right of anyone to issue hateful, irrational, verbal assaults.
The predictable result of such a dialectic is that we end up with conservativism represented by the tea party and shock radio, anarchism by black bloc tactics, the mainstream press ignoring most important issues altogether, and democracy is reduced to a choice between two rulers who trade virtually contentless advertising over minor differences in how to manage all the rest of us to the benefit of the economically powerful.
The second fallacy inherent in the public debate is to equate politics with the set of rules laid down by powerful institutions, in this case the assumption that the level of freedom depends only of what the rules look like. Indeed, the op ed linked above is typical in that it purports to be an assessment of free speech on campus, but in reality looks only at campus speech codes and rules. Not a word is devoted to whether students actually engage one another, to the level of rationality in discourse, to the possibility of anyone's mind being changed by evidence. It is as if this isn't important.
The key here is to acknowledge that powerful institutions setting rules isn't the solution to illiberal discourse, while simultaneously insisting that civility, kindness, inclusiveness, respect, etc. are absolutely essential to the possibility of meaningful communication. Institutionally sanctioned rules are dangerous and, at best, blunt instruments that *might* prevent certain overt expressions of contempt, but they are never going to instill habits of respect, kindness, or serious attendance to the views of others. Personally, I'm against any sort of governmental codes on speech, including hate speech, because I so utterly distrust this form of institutionalized power. I'm a bit less worried about universities abusing their authority in serious ways in this regard, but they miss the point. Engaging in debates about what the campus rules are seems to me largely an abdication of our responsibility to create such a climate in all the messy micro-social ways that actually work. If we want meaningful democracy - meaningful positive freedom of speech - we need to educate, mentor, guide, chastise, organize, etc. with an eye to creating the social climate and individual virtue that make it possible.