Like Jacob Mchangama, I found Anthony Leaker’s essay “Against Free Speech” largely impenetrable, and thus difficult to respond to. He seems to condemn free speech because it allows for the expression of views he disapproves of, including “a range of reactionary, anti-egalitarian, and exclusionary goals,” “corporations,” “the alt-right and far-right,” and “a zombie-like liberal center.” Speaking as a proud zombie-like liberal centrist, I find Leaker’s intolerance alarming.
A slightly narrower version of Leaker’s argument is that pro-free-speech arguments provide the privileged with political cover for an agenda of oppression. Speaking as a lifelong advocate of gay rights and same-sex marriage—causes that prevailed only because sexual minorities were free to plead our unpopular case—I can testify to the value of free speech to the oppressed, and so can any number of dissidents, heretics, and social reformers down through history. “Laws censoring ‘hate speech’ have predictably been enforced against those who lack political power,” writes Nadine Strossen, in her new book, Hate: Why We Should Resist It with Free Speech, Not Censorship, and she provides literally dozens of examples.
Leaker also argues (or seems to argue) that talk of a free-speech “crisis” in America is overhyped, sometimes for political gain. Here a worthwhile discussion is to be had, though Leaker’s essay is not where I would begin. Sensible people debate whether, for example, student attitudes toward free expression have changed for the worse, and whether the change amounts to a crisis. (See, for example, here and here.) My own view is that this debate mostly is beside the point, because free speech is an inherently counterintuitive idea that will always face robust opposition—on and off college campuses—and can never stop arguing its case. As I wrote recently in Commentary, “Every new generation of free-speech advocates will need to get up every morning and re-explain the case for free speech and open inquiry—today, tomorrow, and forever. That is our lot in life, and we just need to be cheerful about it.”
In his response to Leaker, Mchangama makes a point worth underlining. In my experience debating and discussing free expression, I have heard many people make abstract arguments against hate speech and for speech regulation. But rarely, if ever, do they put their cards on the table by telling us exactly how a regulatory regime should look. They will criticize failings of free-speech absolutism or First Amendment jurisprudence, and they will argue in principle for balancing personal freedom against social harm, and they will say that courts use balancing tests all the time, and they will say they are elucidating a general principle whose details can be worked out later.
But the problem is always: who should do the balancing, and in what specific fashion? How does one prevent the politicization or bureaucratization of any rule? What does a statute look like that is neither overbroad nor mechanistically specific? In assessing social harm, how do we reliably account for the intent of the speaker and the state of mind of the hearer? There are many such questions, and anyone who takes a pass on them by retreating to generalities proffers no argument of substance.
In this connection, here’s my chance to give a shout-out to Jeremy Waldron, my co-contributor in this forum. His book The Harm in Hate Speech is, to my mind, the strongest and most careful argument for hate speech controls out there, and I recommend it as the gold standard on the other side of the debate. Unlike many, Waldron takes care to define hate speech not as speech that is merely offensive or hurtful to individuals, but as group libel that creates a social environment that is pervasively and objectively hostile to vulnerable social minorities (my formulation, not his, but hopefully about right).
To my mind, he still fails to show how such a standard could be reliably implemented, but he starts the conversation with a rigor that is all too rare—and he notes that some of what other countries prosecute as hate speech would not be actionable under his challenging standard. Something I’ve wondered: although Mchangama and I would prefer no hate speech laws at all, is there room for us and Waldron to talk about refining and narrowing hate speech laws where they exist?