The Structural Underpinnings of Free Speech

Free speech is the experience of knowing that you can say anything you please without fear of governmental or other institutional authorities. You have free speech when you sound off in a high school class about politics because you know that school is a protected space where a variety of opinions are allowed even if some people may disapprove of what you say or even criticize you for those opinions but must, nonetheless and however grudgingly, admit your right to hold them. Free speech does not mean you are free to insult people, because that violates basic rules of courtesy, but it does mean that contrarian opinions or even fresh and unfamiliar points of view get a hearing, the only control being the informal ones that have to do with customs which can be so rigorous, as in a religious community, that saying unholy things can lead to ostracism or perhaps merely severe rebukes, these enough to make such a community not to be one that allows free speech. Free speech, as an experience, then, has about it the sense of liberation, individuality and democracy. Free speech is also a term that refers to the institutions which, like that high school, protect and further the activity of free speech, and this post is concerned with what are those institutions that led to the establishment of free speech as a characteristic feature of democratic regimes.

The usual explanations for these institutions do not hold up. The closeness of free speech to an idea of democracy leads people to think that De Tocqueville’s town hall theory of democracy also explains free speech. De Tocqueville said that people travelling to town so as to market their goods and by the way meet for deliberations at their town hall about political matters meant that the citizenry gained from the experience of the give and take of deciding who got a road built in his direction and so became inculcated with the idea of democratic deliberation. But the experience of pragmatic decision making thus gained does not impact very much on the ideological issues that separated regions of the country. One needs more than pragmatics to negotiate on slavery or its impact on national expansion or to decide on whether a national bank is a good idea, all lively national issues when De Tocqueville was writing. How do you arrive at a belief in the propriety of free speech in dealing with profoundly emotional issues that, moreover, may not affect your life directly?

Another theory has to do with the press, freedom of the press a proxy or leading edge for all manner of free speech, including those that happen within the family and in the religious congregation. Peter Zenger and John Stuart Mill took this tack. Letting news outlets say what they want, unconstrained by government, constrained only by opposition points of view voiced by other segments of the press, would allow a fair hearing from all points of view and then public opinion would draw its own just decision. The trouble with that is that the press can also get caught up in a partisan frenzy, as when they uniformly went after Clinton for her e-mails and treated Trump as a joke who did not need to be discredited because he was so clearly discreditable and also very good copy. It doesn’t matter if the public catches up with the truth in the long run if they are fooled for the time being, which is long enough to elect a cad to office. Moreover, this model of free speech makes ordinary citizens passive responders to whatever they are being fed, which is very different from the idea that institutions liberate people to be autonomous agents who use their free speech to enlighten themselves and others. Certainly, the left wing criticism of the public as being brainwashed by the press and other media, as that is given significant expression by the Frankfurt School, suggests that a free press is a weak institutional reed on which to rest a doctrine of free speech.

I came across another candidate for the institution from which free speech was generated in a recent article by Adam Gopnik in “The New Yorker”, and it was what, in fact, got me ruminating on this subject. Gopnik reviewed a book about the coffee shops patronized by Jews in the capitals of Europe in the Nineteenth Century and forward. These were places where ideas were freely and openly discussed along with whatever were the controversies of the day. They were places that percolated ideas that spread far beyond the cafes. Far from being a bit of esoterica, these coffee shops might indeed be incubators of free speech. Coffee shops in Paris and London and New York had been doing that job since the beginning of the Eighteenth Century at least and so can be taken as the locus of the development of an intellectual class before the salons of Paris developed in the later part of that century. What is tried out and circulated there can become of general intellectual influence. The problem with that theory, however, is that it leads to only a select part of the population having access to free speech, even if one can add on the proposition that what begins in one institution can spread to others. But that did not happen in Russia, which also had an intellectual class, and it took a revolution in France to bring about change that did not at all have free speech as a cardinal principle. Moreover, the idea that intellectuals have a right to free speech is too much like Kant’s theory of free speech, which offers free speech to academics who remain circumspect, and is so not a general theory at all. Something more general is needed.

Nor does free speech begin as an offshoot of religious toleration, even though it too, like a free press and coffee shops, began in the early Eighteenth Century. Religious toleration was a way to end the wars of religion by turning into a value the truce between religious confessions, particularly between Protestantism and Catholicism. People should respect the religious impulses of others because to impose a different religion upon them does violence not merely to their persons but makes their ascription to a new spiritual orientation questionable however much their tormentors may think it is only making them open to the truth. But this is not a generalizable principle because it applies only to ultimate characterizations of the human condition, not at all to the give and take of politics, and is happening at the same time that what religion takes seriously is being ever more constrained by science, so that what religions come to stand on is a shared consensus on values with little implication for political life, those added on by the culture of the region. What goes on in churches and synagogues and mosques is so personal that it doesn’t have to do with anything else- except, as far as I can see, with abortion and sexuality, where the Catholic Church remains retrograde in joining the general consensus, and is paying dearly for that. So as secularism gets its day, religion becomes less and less a model for how to be free about what really matters, which is health insurance and college education and how much to tax the rich. What is a more general basis than these Eighteenth Century movements for an institutional basis for free speech?

That something more general is supplied by Spinoza, that Seventeenth Century figure. who thought that what made democracy work was that people had to offer themselves for office, regardless of their prestige or wealth, and so become nothing more or less than politicians, which mean people who have to curry favor among others, to seem to be statesmanlike before they assume office and so live up to their pretensions or not. Democracy and free speech go together because speech is the coin of exchange in politics, and so free speech emerges out of the essence of democratic politics. Politics itself, rather than some other institution, is what gives rise to an idea of free speech because free speech is necessary if politics, which means the selection of officials by an electorate, is going to operate, that idea enshrined in the United States Constitution, where so many of the first Ten Amendments can be seen as ways to insure that a free election can take place. You can’t have a free election if people cannot petition to address their grievances, or if a free press is muzzled, or if people can be thrown in jail without due process of law. Free speech is therefore a perquisite of democracy and will come about in democracies rather than democracy the result of there being a pre-existent state of free speech that is based on other institutional resources.

This idea of the autonomy of politics as a sphere of human life is very different from the view ascribed to Hobbes that politics is a creature of violence or the view ascribed to Karl Marx that politics is reducible to economic conflict, Spinoza is correctly identified by scholars as the source of what we would call liberal democratic theory. This view of democracy is buttressed by looking at what was happening to government at the beginning of the Eighteenth Century, which is where all these theories of free speech converge on when free speech originated. Responsible governments were being organized for the first time. That means that governments were institutions accountable to themselves and not just to the charisma or legitimacy of their monarchs. England led the way in that government finances were separated from royal finances. Robert Walpole in the 1730’s and 1740’s established sinking funds whereby the government could draw down on and replenish funds from taxation, which became a fixture of all governments. This happened at the same time that English kings, as executives, became obliged to their cabinets, rather than to their favorites, to run their administrations, even though for the rest of the century English kings were able to replace their Prime Ministers at will. The Americans adopted this idea of government responsible for its finances and responsible to its legislature and, ultimately, to its electorate.

The great threat to democratic government therefore lies in that it might atrophy if its final check and balance, which is the electorate exercising its freedom of the ballot and exercising free speech in its deliberations  on how to use the ballot, itself atrophies because the electorate is no longer interested in or motivated to vote, but simply airs a sense of grievance without remedy, which can lead to revolutionary behavior, even if it is fruitless behavior. (That is how I explain the Trump victory even though the election was so close that it is better to regard it as a fluke than a trend.) Young people, in particular, vote in low numbers and that results not only in them not having a say in who gets elected but in the diminishment of the meaning of free speech, which turns into nothing but the ability to grumble rather than to make a difference in public life. How the electoral process can rescue voters from using their votes to grumble rather than make meaningful or informed choices remains the great dilemma, and we will have to see how the iterative process of campaigning in Presidential years works out this time so that people feel mobilized rather than angry about their choices, how candidates can bust out of their bubbles, take on the media as well as their opponents, so as to make significant and fruitful connections with the electorate, as FDR or JFK or even Ronald Reagan did, and so get a leader who does indeed represent both their concerns, economic and otherwise, as well as their aspirations, which, in the case of Reagan, was to be nice and friendly even if he was also very dedicated to his Conservative consciousness.