The sense of a crisis over freedom of speech on campuses and in wider American society is palpable. The standard media narrative centers on two questions: how to respond to right-wing speakers on campus whose primary goal is spectacle and not dialogue; and how to handle those coddled campus lefties who don’t understand the venerability and surety of our traditions of freedom of speech. Both these questions point to deep problems concerning the very nature of democracy.
The dominant ideological voice in these debates has been based on the assumptions of liberalism, in which uninhibited, unlimited speech is seen as a central right of free citizens. In more absolutist versions of this tradition — like those of John Locke or his 20th-century admirer Robert Nozick — the individual right to speech is natural and given. Society only lumbers in later, like a Johnny-come-lately, with a bad habit of demanding impositions.
With the assumption that absolute, unlimited speech is a natural freedom it becomes very difficult to cogently justify any limits over speech whatsoever (a parallel problem occurs with all such notions of rights, notably of late those around guns). Suddenly, even reasonable attempts to protect some public good become full-blown assaults on individual rights.
Such problems have something to do with the appeal utilitarian defenses of liberal rights have. John Stuart Mill famously argued that, while individuals had no natural or absolute right to freedom, in the context of modern society’s tendency toward a tyranny of the majority, rights ought to be treated as if they were absolute. For Mill, individuals have a right to a freedom as long as it does not harm anyone else. This is Mill’s venerable “harm principle.” And in his classic work “On Liberty,” he is often read as having argued that absolute freedom of expression is almost never a source of harm. But we know that not to be true.
In fact, American law places limits on all rights, even speech. The courts have interpreted freedom of speech in particular as limited in a whole host of situations. For example, so-called time, place and manner restrictions take into account if a speech act is dangerous to the public (e.g. the cliche cry of “fire” in a movie theater) or even just a disturbance, like shouting about the dangers of state socialism after midnight on a residential street. There is also a whole battery of limitations having to do with mendacity and reputational harm — for example, defamation laws.
So American law has always recognized that there are limits on free speech and that those limits are determined by the primacy of some public goods. This is why, strictly speaking, there is no such thing as a freedom of speech absolutist. Of course, there are many people whose stated views approximate something close to such absolutism. For example, Oxford political theorist Teresa Bejan criticized campus calls for limitations on speech in the name of “free-speech fundamentalists like myself” and “the fundamentals of liberal democracy” in a recent article in the Atlantic.
But even this close approximation of free-speech absolutism comes with real risks, even to liberal democracy itself. One of liberalism’s cleverest and most sinister critics — the Nazi jurist, Carl Schmitt — argued that liberal democracies were always bound for a crisis because they could not put up any real defense against enemies. Liberals, according to Schmitt, made the mistake of thinking every enemy of democracy was basically just another, slightly crankier liberal friend. For this reason, Schmitt thought liberal democracies would be too weak to defend themselves when compared to authoritarian societies.
One important way of interpreting campus anxiety over hate speech is trying to wrestle with the problem of how to deal with those seeking to undermine democracy by taking advantage of its very freedoms. In the age of resurgent white nationalism, few need a primer on the ways in which, stated enemies of a free society make use of its public forums to subvert society itself.
Fortunately, there is a rival view of democracy in the United States — one that does not look to absolutist individual rights, but rather bases itself on an ancient tradition of community self-rule known as civic republicanism. The most important articulator of this point of view in the United States is Alexis de Tocqueville. In the 20th century, civic republicanism has been defended in deeply innovative ways by philosophers like Charles Taylor as well.
Civic republicans believe that unlimited individual freedom is not a good in and of itself. Rather, individual freedom is good only insofar as it helps promote the continued practices of democratic self-rule. Civic republicans view certain rights as mandatory for self-rule (e.g. habeas corpus) but they also see individual freedom as something that is only accomplished together by a community. Within civic republicanism, therefore, there is a basis for publicly deliberating over when speech should be protected and when some other public good requires balancing.
To be clear, civic republicanism does not get rid of hard cases. But it at least makes it possible to talk about when forms of speech are imperiling the very way of life that forms the basis for democracy. A society so awash in racism, xenophobic propaganda and hateful speech that it could no longer remain together within a civic space would not remain a democracy for long. Civic republicanism holds that democracy must always wrestle with the difficult question: What does maintaining our free institutions require today? Viewed in this light, the universities are not so much rejecting democracy as wrestling with one of its central dilemmas.
The point is not whether universities and their students have sometimes been in the wrong or misguided on speech issues, which they certainly have. The point is that they should not automatically be interpreted as anti-democratic. To the contrary, they are dealing with the problem of how to protect self-rule. The space in which we deliberate is itself something that must be politically secured. The universities, as the rest of us, cannot be spared the work of thinking through how to preserve our freedom.