Speaking Freely About Free Speech

Hi, 

I think I should stop being coy. I keep saying how I am not a free speech absolutist, but I haven’t really explained what I mean, at least not for a while and some readers and listeners are understandably getting annoyed. And since I’ve been working through the philosophical underpinnings of my conservatism, I thought this would be a good opportunity to lay down some markers. (Also, The Dispatch has internal meetings this week so I have to write this outside the news cycle anyway.) 

So in the spirit of thinking out loud—and explaining how I think about this stuff— let’s start with a familiar argument of mine. 

Democratic societies depend on undemocratic institutions. 

This argument should be familiar to readers by now. The U.S. military is an institution that protects democracy, but it isn’t a democratic institution. Soldiers don’t vote on strategy, and outside a few specific battlefield conditions they don’t vote on tactics, either. 

The free market not only sustains democracy, it is broadly speaking democratic in the sense that people “vote” with their money. But neither private businesses nor public corporations are meaningfully democratic internally. Sure, shareholders often vote on this or that, but the employees for the most part do not. Spare me the counterexamples of your employee-owned vegan co-op bakery, you get the point. 

Organized religion is widely—though not universally—believed to be a bedrock of a democratic society. Most churches, mosques, temples etc. do not regularly put important questions of doctrine or dogma up for a vote. “Nicene Creed? Who’s with me? Come on Todd, raise your hand.”

Education is even more widely believed to be a vital ingredient of a functioning democracy. And yet, while math teachers sometimes ask for a show of hands for what the class thinks the correct answer to the problem on the blackboard is, the result of the polling isn’t supposed to determine what the correct answer is. 

Perhaps even more than education, journalism—a free press, “the Fourth Estate” —is seen as perhaps the most vital bulwark against tyranny. “Democracy dies in darkness” and all that. But, to my knowledge, no journalistic outlet is particularly democratic internally. 

And finally I should say that the nuclear family, for many of us, is the most important institution in democratic society, or in any society. While families do occasionally put some questions up to a vote—what movie should we see? What do you want for dinner?—I don’t think many people would say the family is a definitionally democratic institution. 

For reasons I don’t completely understand, a lot of people get very angry at me when I say that you can have too much democracy. I’ve learned to say stuff like, “I’m for democracy in the areas where democracy is necessary, but nowhere else.” But that pisses some people off, too. Even though I think everyone understands my point—that most of these institutions would be harmed or outright ruined if they were to become fully democratic internally. 

Okay, with that out of the way, I think about liberalism—which I’m using synonymously with the idea of a free society—in very similar ways. All of the above institutions are vital to liberalism, for largely the same reasons. Indeed, we generally teach liberalism and democracy in the same lesson plan (i.e. democracy is essential to a free society, and a free society is necessarily democratic). The right to vote is just one of the rights sloshing around in the bucket of constitutional rights.

But here’s the thing: A lot of those constitutional rights are undemocratic. By this I mean we put those rights on a very, very, high shelf—i.e., in the Bill of Rights—so voters can’t reach them without putting in a huge amount of effort. American voters can opt to do some truly idiotic things about how we organize society, but for the most part they cannot vote to repeal the basic rules of liberalism. The Constitution forbids the government from violating the Bill of Rights. “Congress shall make no law” that prohibits the right to worship or associate or exercise free speech etc. In the great philosophical game of rock-paper-scissors, democracy is scissors and liberalism is rock.

Democracy, at least for our purposes, really just speaks to how we choose political leaders. Liberalism—again, our conception of a free society—goes deeper and wider. No one freaks out over the fact that the New York Yankees deny the people on their payrolls the ability to vote on the starting line-up. But if the Yankees management put a player in a cage because he refused to bunt when instructed to, people would rightly get angry and lawyers would get paper moving. In other words, the authority of liberalism extends to places democracy does not. 

But liberalism doesn’t necessarily extend everywhere, either. Some of it does extend really, really, far. But like the tide, the farthest out it comes onto the land is also where the sea is shallowest. 

That whole “Congress shall make no law” thing is about restraining government. Like Ron Burgundy, that’s kind of a big deal. 

There are some other commitments that work alongside liberalism and can be more important than liberalism. In non-liberal (and non-democratic) societies, murder, theft, etc. are still against the law (even if the exceptions to the rule are one of the defining features of such societies). The distinction between liberal rules and criminal laws is often, but not always, subtle. But I also think it’s sufficiently easy to grasp for most people that it’s not worth wading too deeply into. Suffice it to say, business owners can tell an employee to empty the garbage cans, but they cannot whip them. An army captain can order a soldier to stand guard, but he cannot summarily execute the soldier who has an unauthorized pledge pin on his uniform. 

I know what you’re thinking: “Wasn’t he going to talk about free speech?” Well, here we go. 

I’m generally for it. Hell, I’m in the free speech business. So, for most of the controversies over free speech, I’m generally on Team Free Speech (and Team Free Press, though these are not synonymous terms). 

Where I get off the team bus, or simply display a lack of team spirit, is when it comes to institutions where there are competing priorities. Let’s use a very easy example for illustration purposes. I think every family should have a very liberal attitude toward free speech. Kids and parents alike should be able to speak freely about their feelings and concerns. When children ask stupid questions—which happens a lot—parents shouldn’t mock them, they should converse with them, for the purpose of educating them. Kids need to be encouraged to think expansively, creatively, rigorously, etc. And that requires a lot of good-natured patience. Moral education is a form of education, too. 

Which is why parents with a liberal attitude on speech should also expect their kids to speak politely and respectfully. As often happens, kids don’t always have a great grasp on what constitutes politeness or respect. And so you teach them: “We don’t use that word in this family.” “That was rude.” “Don’t talk to your mother that way.” “Apologize to your sister.” “Take down that post on Instagram. I thought better of you.” “Take down that poster.” Etc. 

In other words, free speech is a good family value, but it’s not the only one, and it’s certainly not the most important one.

Schools, both at the K-12 level and at the university level, deal with the same issues at scale. In loco parentis isn’t just a mossy Latin phrase. A second-grader who drops F-bombs or bigoted slurs should be punished or at least remonstrated. Teachers and administrators have some leeway, but, at some point parents should be notified about this kind of behavior and, hopefully, there will be further consequences. 

Part of my objection to the mantra that universities should have a blanket free speech policy is that this can be an abdication of the in loco parentis function of moral education. Schools, like families, are essential to forming good character. They used to take this function much, much, more seriously and there were surely drawbacks to that. But the argument that a principle was taken too far is not an argument for eliminating the principle entirely. We all understand this when it comes to, say, cheating or plagiarism (though maybe not at Harvard), but we get fuzzy when it comes to free speech. 

My friend Charlie Cooke and I once got into an argument about whether it’s okay to debate Holocaust denial on college campuses. Charlie—who is in no way, shape, or form a Holocaust denier—believes in a robust, fairly unlimited free speech regime. And while I think I agreed with him that if a school invites a Holocaust denier to speak the school should probably honor the invitation regardless of the blowback, I have no problem with banning such invitations. There’s little to nothing important gained from treating such issues as “open” questions. Weirdly, there are a lot of people who disagree with that but who would be aghast at the idea of inviting a defender of slavery to speak on campus. I’d be against that, too. Some propositions should be closed, some questions settled, some ideas planted in the bedrock of moral dogma. The value of taboos resides entirely on what is considered taboo.

Now obviously, the question of “Where do you draw the line?” looms over all of this. It can be a hard question. I have responses to this. 

First, this introduces another vital liberal value: Pluralism. I am a passionate defender of theological pluralism but moral unity. Different institutions will answer hard questions differently. I have no problem with the idea that, say, Notre Dame can declare that some egregiously sacrilegious speech is forbidden on its campus while the same speech at Brown University is considered uncontroversial. Plenty of Catholic high schools once banned certain kinds of expression—often enforced by a nun with a ruler—that would be tolerated at other schools. That is fine with me. 

Second, universities are literally crammed with well-compensated people who are asked, as part of their job descriptions, to answer hard questions and draw defensible lines. 

Third, you always want someone in the room making the maximalist free speech argument. I’ve always said that every meeting of government planners should have at least one hardcore libertarian in the room to ask, “Should government do anything at all here?” I think the same about college campuses. There should always be someone in the room making the pure, principled, case for free speech.  

Egregious thought and speech policing is the product of groupthink (often with the intent of imposing groupthink). You want someone in the room to make Charlie’s or David’s (or FIRE’s) case, not least because it’s always going to be principled, insightful, and—99 percent of the time—correct. In the 1 percent of cases where I think they might be wrong, you’ll still make better decisions about crossing the line if you at least know where the line is. 

With that in mind, let’s address the controversies that have bedeviled universities since October 7. 

I have fairly deep and profound contempt for the DEI racket. But you don’t have to buy into all of the newfangled intersectional gobbledygook about how speech can be violence and violence can be speech to believe that celebrating and endorsing a vicious pogrom against Jews is inappropriate in the immediate aftermath of such a pogrom. And I’m not even talking about the actual crimes of harassment and intimidation. A rally celebrating “resistance” and calling for extirpating the Jews “From the River to the Sea” that adhered to all of the free speech rules would still be in incredibly poor taste, to use a perfectly serviceable, unsophisticated term.  When the first newsreels from Auschwitz reached America, if members of Harvard’s German American Bund asked to have a celebratory event, and I was the school president, I wouldn’t have had to think hard about whether to give permission for it. “Hell, no. What’s wrong with you?” would be my answer. And if the kids did it anyway, I’d suspend or expel them. 

Character is formed by what you allow and don’t allow. 

Now, academic freedom is a different thing, inviting different lines to be drawn and different questions to be asked. And I’m more of a purist on this score. But it’s worth keeping in mind that none of these schools are remotely pure about this sort of thing. Many schools require faculty to sign DEI pledges. Great professors are fired, denied tenure, or unpersoned, because their perfectly defensible scholarship doesn’t align with the ideological priorities of these schools while shoddy and tendentious “scholarship” is rewarded. 

One of the things that’s not fully appreciated in the antisemitism debate ignited by the three presidents’ testimony is that the “except for Jews” standard violates both free speech values and DEI values. You can’t routinely suppress and police “hate speech” in the name of DEI but have a carve out for anti-Jewish hate speech by hiding behind selectively enforced free speech rules. You can’t celebrate robust free speech when it comes to antisemitism while claiming that you actually believe all that B.S. about hurtful speech being violence. Well, you can—if you think Jews don’t count.

Now, to be very clear: If forced to choose between these elite schools embracing a serious free speech regime or simply adding Jews to the official DEI list of oppressed groups, I’d pick free speech every time. But I don’t think that has to be the choice. DEI should go because DEI should go. It teaches kids to think that they are victims and that white people are oppressors regardless of context or personal behavior. That’s simply illiberal. It also wastes a vast amount of money and time on nonsense that could be better spent almost anywhere else. 

It’s also a warped and pernicious approach to character formation, one that starts with the admissions process. Applicants are encouraged to define themselves as a member of a marginal group and wax eloquent on their intersectional struggles. They get more helpings of DEI at orientation, and yet more in the classroom. You are not helping young people when you teach them that they lack agency, that their problems are presumptively someone else’s fault, that the decent country they live in is structurally racist and oppressive. No good parent should teach their kids that way, nor should any institution that is acting as a parent (which is what in loco parentis means after all).

So yeah, free speech principles are better. But, as David French is often at pains to tell people, free speech principles allow for all sorts of reasonable limitations. Age restrictions, for instance, are perfectly consonant with the First Amendment. Rules against obscenity clear the hurdle, too. I like community standards more than David does, but he still allows for some restraints along those lines. Yes, yes, as a legal matter public institutions have different rules than private ones. And that’s fine. All three universities we’ve been talking about are private universities. 

I should add that universities haven’t in fact abandoned moral education. They care about character a lot. It’s just that their definition of character is deformed. Free expression about unpopular ideas is suppressed, while free expression about often ill-informed or uninformed feelings is celebrated and rewarded. It is now considered a vital part of the “college experience” to protest for the sake of protest. The liberal in “liberal arts” used to refer to both the knowledge and critical thinking skills necessary for maintaining a free society. In too many cases, “liberal arts” is now an exercise in equipping students to believe that society is either not free—or shouldn’t be. 

But that’s a conversation for another time. I’ve done enough thinking out loud for now. 

Let’s circle back to where I began. Democracy is great for the things democracy is great for, in the same way that forks are better than spoons for eating some things, but worse than spoons for eating soup.