This document summarizes and critiques the current public debate around free speech, which has become polarized between defenders of unfettered free speech and promoters of civility. The author argues that the debate has lost sight of the important ideal of positive free speech as meaningful civic participation. While powerful institutions setting speech rules is problematic, civility, respect and inclusion are essential for rational discourse. The public debate also wrongly focuses only on rules rather than whether open debate and consideration of diverse views actually occurs.

1. Degenerating public discourse
on free discourse - and a plea to philosophers to engage23:19 31-10-2012, Mark
Lance, mark lance, politics, New APPS: Art, Politics, Philosophy, Science
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.
The most obvious point is that the distinction between positve and negative
freedom has been lost in the public discourse. The important freedom is
positive: the ability to engage meaningfully in civic debate around issues of
moment. In the specifically political context, this freedom connects crucially
to the value of democratic governance. Active and meaningful participation in
rational debate leading to policy is a necessary part of collective governance,
and without it, one is alienated from the social system - ruled by it, but not a
part of that rule. For this reason, political thinkers from a wide range of
traditions - classically liberal and classically conservative, as well as
anarchist, Marxist, Communitarian, etc. - have taken this to be one of the
central political freedoms.
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

2. 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.