A philosopher makes the case against free speech

And I push back.

I don’t consider myself an absolutist about anything — except for free speech.

The value of free expression seems so fundamental to me that it hardly needs a defense. It is, after all, enshrined in the First Amendment of the US Constitution. But like any dogma, there is utility in occasionally challenging the assumptions that undergird it.

Which brings me to a paper I recently read in the Sydney Law Review, titled “The Case Against Free Speech.” The author is Brian Leiter, a political philosopher at the University of Chicago. Leiter argues that we shouldn’t think of free speech as an inherently good thing and that there are negative consequences for pretending that it is.

The sort of speech he’s talking about is public, the kind of stuff we hear on television or read in newspapers. He’s not suggesting we should even think about regulating private or interpersonal speech. And in fact, he doesn’t think we can even regulate public speech, mostly because we just don’t have a reliable way to do it.

But he does raise some interesting objections against what’s often called the “autonomy” defense of free speech, which holds that people are only free to the extent that they’re allowed to say what they want, read what they want, and determine for themselves what is true and what is false.

According to Leiter, this is a bogus argument because people are not actually free in the way we suppose. We’re all conditioned by our environment, and what we want and think are really just products of social, economic, and psychological forces beyond our control. If he’s right, then the “autonomy” defenses of free speech are just wrong, and probably dangerous.

I spoke to Leiter about what he thinks we get wrong about free speech, and why most of the arguments people make in defense of it fall apart when you examine them closely. A lightly edited transcript of our conversation follows.


Sean Illing

Let me start by summing up your argument as simply as I can, and then we can go from there. I take you to be saying that most of our public speech, the kind of speech we consider morally and politically serious, is not only useless but actually hinders our collective effort to get at the truth, and therefore we shouldn’t permit its expression without considering the social costs.

Brian Leiter

That’s really close, but I think it’s not quite right in one important respect. Because at the end, I actually argue for a pretty strong libertarian approach to free speech, but not on the grounds that the speech necessarily has value. A lot of it has no value, as you correctly said in your summary.

But basically I don’t think we can be confident that the regulation of speech, or the regulators of speech, would make the right choices in discerning what is good and bad speech, or what is helpful or unhelpful speech. But this says more about the pathologies of the American system than it does about the value of freedom of speech.

Sean Illing

We’ll come back to the regulator problem, because I think it ultimately undercuts any effort we could ever make to control speech. Maybe it’ll help if you first explain why you want to take a sledgehammer to this assumption that free speech is an inherently good thing for society.

Brian Leiter

My paper is about running through all the arguments people make in defense of this assumption and showing why they don’t hold up. I’ll start with the simplest one, which is this idea that a free marketplace of ideas is likely to help promote discovery of the truth. This is probably the most famous defense of free speech associated with the British philosopher John Stuart Mill.

But what people often don’t stop and notice is that even Mill thought certain background conditions had to be established for it to really be true that a marketplace of ideas would lead to the discovery of the truth. Mill said, “People have to be educated, and they have to be mature.” Those are pretty thin conditions, and you might worry that a lot more is required for a real marketplace of ideas to be conducive to the truth.

As I point out, we have an important institution in American society that aims to discover the truth, namely the court system. And the striking thing about the court system is that it completely rejects the marketplace of ideas view. It says, “It’s crazy to think we’ll discover the truth by just permitting people to express any view they want, make any claim they want.” In the court system, we impose massive restrictions on speech to facilitate the discovery of truth.

Sean Illing

Okay, I’m glad you brought up your court analogy. Here’s my problem: A courtroom and a political community are wildly different contexts, which even you acknowledge in the article. To take just one difference: A court’s job is to establish the facts so that jurists can decide accordingly. But politics is about values as much as facts. Is there any way for a community to decide how to live and what’s worth pursuing without allowing the free exchange of ideas?

Brian Leiter

Fair question. I would disagree a bit with the assumption that politics is mainly about values rather than facts. An awful lot of politics is about facts and their relationship to the values that can be realized in concrete policies.

So take one of the examples I use: the Bush administration’s efforts to justify the illegal war of aggression against Iraq in 2003. That turned heavily on the misrepresentation of the facts. It turned heavily on Fox News, in particular, indoctrinating a large part of the population into thinking there was some connection between Saddam Hussein and al-Qaeda when there was none.

And then take something like climate change, where there’s a constant disagreement about the facts with so-called skeptics who insist, in the public sphere, that the science doesn’t really establish this. These are fact disputes, not value disputes.

I certainly agree with you that there are value disputes, but the establishment of facts is hugely important.

Sean Illing

Just to be clear, I’m not saying facts don’t matter. I’m saying politics is about deciding what we ought to do in light of what is. And in order to have that kind of conversation, we need the free exchange of ideas.

Brian Leiter

Again, I’d resist that a little bit. I think most of our disputes are about factual questions. I mean, Bernie Sanders and Elizabeth Warren aren’t saying, “In order to promote the values of equality and well-being, we need higher taxes on the rich.” And the other side isn’t saying, “We’re not interested in equality or freedom.” They say, “We don’t think that’s the way to realize those values.”

Sean Illing

I disagree about that, but I don’t want tumble down a rabbit hole here, so let’s stay on topic. Is there any way to maintain a free society without simply accepting that most opinions on serious topics are bad and ill informed, and yet that’s the price we pay for allowing citizens to express their political identity?

Brian Leiter

There is clearly a lot of value to people in letting them express their political identity, their moral views, and so on. It’s important to people’s well-being to be able to speak their mind. I don’t want to discount the value of that. I just think that’s one value that should go into a broader calculation that takes into account all the harms that are related to the expression of certain kinds of views.

Sean Illing

Do you think people are free in any meaningful sense if what they’re allowed to hear, or see, or read, is controlled or constrained in any way?

Brian Leiter

It depends on what kind of control and regulation is involved. So I’ll give you another analogy. I control what the students in my class read and discuss. I actually think this enhances their freedom and their autonomy by bringing to their attention substantive materials, helping them frame thinking about these particular issues, and so on. So regulation isn’t necessarily incompatible with free thinking.

But that brings us back to the question I touched on at the very beginning. The best argument for broad freedom of expression is skepticism about whether those who would regulate expression would do so in a way that was productive and constructive, rather than simply making things worse.

Sean Illing

Although you keep expressing skepticism, you still seem to think we’d be better off with gatekeepers — some institution or body of institutions that decides what should or shouldn’t be expressed in the public sphere.

Brian Leiter

That would seem to be the conclusion following from the arguments in the first part of the paper. But my conclusion is that even if there isn’t enough positive value to speech to justify its unfettered expression, there are certainly reasons to be worried about whether capitalist democracies will regulate speech in ways that aren’t simply pernicious.

But this has more to do with the pathologies of our political system than it does to do with the intrinsic value of speech. That’s one of the main points I’m pressing on in this article.

Sean Illing

As I read your paper, I kept thinking about the media critic Walter Lippmann (whom I wrote about for Vox), who struggled with these same questions. He didn’t think most people could be trusted to decide intelligently what ought to be done, so he wanted technocrats and experts to act as mediators of sorts. But the problem is always, who are the arbiters of worthy speech in this imagined order? And how will we stop them from abusing their power?

Brian Leiter

Under the current circumstances, I think that’s exactly right. But I’ll also quote the German philosopher Herbert Marcuse, who, when asked, “Who will make these decisions,” said, “Who makes them now?” And that’s worth bearing in mind.

These decisions are, in fact, being made now. They just aren’t being made by bureaucrats. They’re being made by Rupert Murdoch, by editors behind the scenes, by producers on TV programs, who themselves are responsive to all kinds of interested parties.

Sean Illing

What’s the alternative? We either live in a free society, or we don’t. There does not seem to be much room for compromise here. I mean, there’s no marketplace of ideas that isn’t saturated with bad ideas, right?

Brian Leiter

I guess it’s a matter of degree. Again, I think the big problem now has to do with the pathologies of our political and economic system. Maybe what we need is for the political and economic system to change if we’re ever going to adopt a more sensible approach to the regulation of expression.

I also think most people fail to understand what’s meant by “free society.” No one thinks we don’t live in a free society because there are restrictions on public masturbation or public sex, right? There are always limits. We countenance all kinds of restrictions on freedom. It’s always about trade-offs, and what we’re ultimately willing to live with.

Sean Illing

Well, I’d say free speech is crucial to individual liberty in a way that, say, public masturbation isn’t, but that’s another argument. It’s still not clear to me what you’d have us do? What is the solution here?

Brian Leiter

It’s important to recognize that most of what any of us believe about the world depends on intermediaries, people who guide us as to what we ought to believe because it’s true. I believe in evolution by natural selection, but not because I did all the experiments in the lab.

The big crisis of the internet era is that it has eliminated a lot of the traditional intermediaries, such as the New York Times or the Wall Street Journal or PBS or the BBC and so on. Those old intermediaries weren’t perfect, but they were better than what we have now. So I think we need better intermediaries that help people to sort out the world.

But again, I don’t anticipate a law being passed that shuts down Sean Hannity or Rush Limbaugh — we’re stuck with them. Which means we’re stuck with a public sphere filled with nonsense. So the short answer is that we’re screwed.

Sean Illing

Look, the ideal political system is one in which everyone is wise and discerning and cares very deeply about the truth. But such a system is not possible, has never been possible, and so we must live in the least imperfect and most just society possible. Has liberal democracy not proven to be just that?

Brian Leiter

I’m not sure it’s that simple. Liberal democratic societies have certain values, and they’re mostly good. But the problem is having a capitalist economic system that pollutes the public domain and presents all sorts of obstacles to the intelligent expression and regulation of speech.

Under capitalism, at least the sort of capitalism we have now, the ruling class completely distorts our political process and the laws that get enacted. Until we do something about that, we’re not going to be in any position to hope that regulation of speech, let alone other aspects of law, will actually be conducive to human well-being.

Sean Illing

This is ultimately why I don’t know what to do with your paper. I agree with your general diagnosis here, and yet we end up in a dead end.

Brian Leiter

Well, if I may reference one of my favorite philosophers, whom I know you like as well, Nietzsche said, “Sometimes the truth is terrible.” And I think there’s value in recognizing the truth of our situation, even if it’s terrible.

We have massive amounts of worthless, dangerous speech in the public sphere right now, and at the same time I can’t see any legal remedy that isn’t likely to be used for even more pernicious ends. But the situation we’re currently in is quite dire, and the fact that we have a monster child as our president is proof of that fact.

Sean Illing

Given everything you’ve said, given the paucity of realistic solutions, what’s the point of an article like this? Why make the case against free speech if there aren’t any viable means of improving speech?

Brian Leiter

The fact that there aren’t solutions now isn’t a reason not to identify a problem. And of course, one point of the article is to challenge what I think is a slightly unthinking popular consensus. Free speech isn’t an inherently good thing; it can be good or it can be bad, and normally we think of the law as something that can step in when things can be both good or bad, like operating a motor vehicle, for example, which is why we have rules about it.

But in the case of speech, we have good reason to be worried about whether we’ll make the right rules. And therefore, the real question that we need to talk about isn’t about assuming the intrinsic value of speech. It’s about why we have a political and economic order that makes it impossible for us to regulate all the bad things about speech in a reliable way.