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Kids and Social Media: Why the First Amendment Argument Fails

photograph of children playing on smartphone

Utah’s recent push for legal restrictions on the social media consumption of minors represents the most aggressive legislation of its kind to date. Of course, many other countries have placed stringent restrictions on the social media usage of their citizens, but the United States has been reluctant to follow suit. The reasons why a liberal society might be hesitant to restrict citizens’ access to these platforms are obvious enough. The United States enjoys a Bill of Rights that legally ensures the freedom of speech, and because social media platforms serve as an important mechanism for exercising one’s freedom of speech in the modern world, restricting citizens’ access to these platforms might be deemed unconstitutional. Additionally, insofar as political liberalism calls for governments to make minimal value judgments, heavy-handed restrictions in the name of state paternalism are often undesirable. Thus, we’ve landed as a society in a position where the negative  impacts of social media usage are well-known, but there is no consensus on an appropriate remedy.

Due to the concerns mentioned above, I think there are strong reasons to refrain from legal intervention with the social media usage of adults. However, the picture gets more complicated when considering minors. There is strong legal precedent for limiting children’s access to certain products before they reach a particular stage of cognitive maturity. For example, the United States limits alcohol and tobacco consumption to those twenty-one or older, as well as places age restrictions on purchasing weapons and driving cars. Virtually no Americans advocate for completely abolishing these restrictions, making us functionally committed to the notion that certain rights enjoyed by adults should not be granted to children.

There might very well be compelling arguments against the legal regulation of social media usage for children. However, one of the most commonly utilized arguments against such regulations — the argument from the First Amendment — stands on shaky ground. The First Amendment is composed of five distinct rights: the rights to the free exercise of religion, freedom of speech, freedom of the press, peaceful assembly, and government petition. Those who believe the First Amendment precludes placing restrictions on the social media accounts of children claim minors have their freedom of expression protected by the First Amendment, and thus such restrictions are unconstitutional. The New Yorker recently published a piece arguing for this position, and similar arguments can also be found here and here. While such a stance is understandable, the argument ultimately rests on an implausible interpretation of the scope of the First Amendment.

Obviously, there are many nuances involved in theories of constitutional interpretation, but on any viable interpretive framework, special constraints apply to minors that do not apply to adults. With children, the exercise of a number of constitutionally protected rights is constrained in various ways, and the extent to which children are able to exercise any particular right is determined by a number of factors, including the risks associated with the expression of that right, as evidenced by the categorical exclusion of children from the right to bear arms. Of course, the right to bear arms is not the only right that children cannot fully exercise. We can also consider the nature of other First Amendment rights, such as the freedom to assemble and the freedom of religious practice. It is clear enough there is at least some sense in which the right to peaceful assembly applies to children. Minors can meet up in groups and can even attend political protests. However, a child’s right to peaceful assembly is clearly also constrained by parental consent. For example, law enforcement is permitted to limit an eight-year-old’s right to protest if the child’s parents have not consented to her being present.

Furthermore, while it is true that children bear a right against a government imposed religion, children oftentimes have a religion imposed on them by others. A child’s ability to seek out the religion of her choice is functionally highly limited by her upbringing and family of origin. For instance, if a child grows up in a conservative Jewish family, the child is likely compelled to engage in the practices associated with the Jewish tradition. Families are legally permitted to exercise a certain degree of coercive power over their children which shapes the degree and extent to which they practice a particular religion. Probably only a small minority of people would contend that this constitutes a rights violation on behalf of the child, while most people tend to agree that an adult being coerced (even if non-governmentally) to practice a particular religion does constitute a rights infringement of some kind.

The right to free speech seems to function quite like the rights of assembly and religion in that there is certainly some sense in which children have a right to free expression. The Supreme Court has ruled on a number of cases pertaining directly to the issue of free speech and minors. One of the most influential of such cases is Tinker v. Des Moines Independent Community School District, where the Court ruled that minors have a right to self-expression in schools insofar as it is not highly disruptive of the academic environment. While, in this particular case, the Court ruled in favor of the free speech rights of K-12 students, the Court has historically decided that college undergraduates (i.e., legal adults) enjoy greater free speech protections than do younger students. More specifically, there are various cases where the Court appeals to age-based considerations to defend substantive limitations on the speech of minors. One such case is Bethel School District 403 v. Fraser, where the Court ruled public schools can prohibit students from engaging in particularly crude or offensive speech.

If we look at the implications of the Bill of Rights, there are certain rights that simply do not apply in any meaningful sense to children due to the severity of the associated risks (e.g., the right to bear arms), as well as certain rights (e.g., the freedom of assembly and the freedom of religious practice) which apply in a limited way to children. My argument is that the right to free speech falls into this latter category. While there is clear legal precedent that children are allowed to freely express themselves to a certain degree, there is also strong precedent for reducing the scope of that right. For this reason, simple appeal to the First Amendment is insufficient as an argument against the type of legislation proposed by Utah.

This is, of course, not to imply that such legislation is entirely legally and morally straightforward. Perhaps a legitimate concern is that allowing legal restrictions of social media in the case of minors will have a slippery slope effect, eventually endangering the free speech rights of adults. Another potential route to striking down the Utah bill is to argue for the expansion of the free speech rights articulated in cases like Tinker v. Des Moines. Whether the types of restrictions proposed by Utah constitute a viable solution to the negative impacts of social media on young people’s lives is a debate which will need to be settled both in the courts of law as well as in the courts of public opinion over the coming months and years.

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What Are the Limits of Academic Freedom?

photograph of dividing line with shoes on opposite sides

In November of 2019, Indiana University professor Dr. Eric Rasmussen tweeted a quote — “geniuses are overwhelmingly male because they combine outlier high IQ with moderately low Agreeableness and moderately low Conscientiousness” — from an article titled “Are Women Destroying Academia? Probably.” After being picked up by students and various media outlets, Indiana University’s administration was flooded with calls for his dismissal — a response which was intensified by the larger patterns apparent in Rasmussen’s social media: in a letter sent to students, then-provost Lauren Robel described how Rasmussen’s social media activity reflected a variety of overtly sexist, homophobic, and racist beliefs. In an interview with CBS, however, Rasmussen argued that he could not be held responsible for the tweet or any of the other views which Robel ascribed to him, saying that “academic freedom should protect me, even if I believed all the things [Robel] attributed to me.” Though Robel found Rasmussen’s views “loathsome,” Robel noted that the First Amendment, and its protection of free speech, “is strong medicine, and works both ways.” Though he was forced to adopt double-blind grading, Rasmussen remained on faculty until his retirement in 2021.

Earlier this year, the tension underlying Rasmussen and Robel’s exchange was rekindled in a series of essays in The Chronicle of Higher Education. Amna Khalid (whose work I have discussed in these pages before) and Jeffrey Aaron Snyder argued that when concerns about diversity, equity, and inclusion come into conflict with academic freedom, “academic freedom must prevail.” Stacey Hawkins, who serves as Vice dean and Professor of Law at Rutgers Law School, argued against Khalid and Snyder’s categorical position, writing that administrators, in resolving such conflicts, must “measure the relative harms, evaluate facts and circumstances, and render judgments that elevate the needs of the many over the needs of the few.” This drew a significant response, including a cutting critique from Brian Leiter — the Director of the Center for Law, Philosophy & Human Values at the University of Chicago — which couldn’t have a more unambiguous title: False That Academic Freedom Must Sometimes Cede to DEI Objectives.

.  .  .

Political freedoms — such as freedom of speech, religion, or privacy — are not monolithic: rather than being independent from one-another, the various forms of freedom which we hold dear are deeply interconnected, with each checking and balancing each other. Though your doctor, for example, has a right to freedom of speech, they are not permitted to disclose your protected health information without your permission; though your teacher has freedom to practice their religion, they cannot proselytize in a public school. In both of these cases, the freedom of one is limited by the freedom of another: your doctor’s right to free speech is limited by your right to privacy, and your teacher’s freedom of religion is limited by your own freedom of religion.

Academic freedoms are no different: they exist in relationship to other rights and other freedoms. This simple claim, however, can be incredibly easy to overlook. Consider the definition of academic freedom advanced by the American Association of University Professors (AAUP):

Academic freedom is the freedom of a teacher or researcher in higher education to investigate and discuss the issues in his or her academic field, and to teach or publish findings without interference from political figures, boards of trustees, donors, or other entities. Academic freedom also protects the right of a faculty member to speak freely when participating in institutional governance, as well as to speak freely as a citizen.

Most of us would hold that, in most cases, a researcher should be free to investigate issues in their field; but this freedom is not absolute, and the AAUP’s definition fails to properly acknowledge the ways academic freedoms can infringe upon — or clearly violate — the freedoms of others. Researchers are not free to withhold life-saving interventions, and lie about doing so, in order to study the natural progression of a disease; researchers are not free to spread plague-infected fleas in order to study the efficacy of various biological warfare strategies. These were very real experiments, done in the name of generating knowledge and furthering a field of inquiry — to the absolutely horrifying cost of the human beings who were sacrificed. In response to these human rights abuses by researchers, an entire field of medical research (now known as bioethics) was created, and strict protocols were established through Institutional Review Boards (IRBs) to confirm that researchers did not infringe upon the rights of research subjects. This reflects a sensible picture of academic freedom: that academic freedoms, like all freedoms, are limited by other forms of freedom and the ethical obligations which they impose on researchers. I would not accuse the AAUP of supporting unethical research; their definition of academic freedom, however, completely ignores the balance which must be struck between any form of freedom and all others.

Further, an academic cannot merely invoke academic freedom to absolve themselves of their larger ethical obligations. In the context of research, professors are routinely fired, and research is routinely retracted, for failing to abide by IRB procedures — and few would argue that they shouldn’t be. What qualifies as teaching, similarly, is not left up to professors to decide: we do not, and should not, tolerate when professors are abusive to students as part of their “teaching” process. Whether it be in the context of research or teaching, holding academics accountable requires that academic freedom be limited.

If academic freedoms, like all other freedoms, are understood in this interdependent way, then the picture painted by the Rasmussen Controversy and the debate in The Chronicle of Higher Education is cast in a very different light. It’s plausible to claim that Rasmussen’s academic freedoms are limited by his student’s freedom from discrimination, rendering the claim that academic freedom entirely absolves him of responsibility inert (and Robel’s decision to retain him ethically questionable). It’s equally plausible to claim that universities have an obligation to not just protect students from discrimination, but also to proactively support diversity, equity, and inclusion — and, therefore, that academic freedoms must be balanced against and limited by these obligations. Where this balance is struck, and in what particular instances academic freedom should be limited, is a matter which will be settled over intentional and meaningful debate. But such limitations do exist, and such a debate must be had in earnest — however forcefully claims to the contrary are made.

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The Double-Edged Sword of “Free Speech”

photograph of mic on graduation stage before empty chairs

On June 2nd, The Christian Post reported the story of Savannah Lefler, a high school valedictorian in Michigan whose “Christianized” honors night speech was facing censorship by school officials; after a legal nonprofit urged administrators to reconsider, Lefler was informed that she will be allowed to deliver her prepared remarks as desired. According to First Liberty, a law firm dedicated “to defending religious liberty for all Americans” who wrote in Lefler’s defense, “Too often, we have seen well-meaning school officials thinking they are complying with the Establishment Clause mistakenly go too far and censor the private speech of students, violating students’ rights under the Free Speech Clause.” (First Liberty has also defended other high school graduates from Pennsylvania and Michigan in similar cases.)

One day later, on June 3rd, The Christian Post reported the story of Paxton Smith, a high school valedictorian in Texas who delivered a graduation speech criticizing the so-called “heartbeat bill” recently signed by Governor Greg Abbott; rather than delivering the pre-approved remarks she had written and submitted, Smith spoke for roughly three minutes against Senate Bill 8 that, among other restrictions, bans abortions performed after six weeks of fetal development. According to Smith in her surprise, unapproved commentary, “I cannot give up this platform to promote complacency and peace, when there is a war on my body and a war on my rights.”

Rather than discuss the details of religious freedom or the debate about legal abortion in this article, I’m interested in thinking about what happened on June 4th — or, more accurately, what didn’t happen. As I comb through the recent archives of several large-scale news media organizations, many of them are only reporting about one of these two high school graduates with controversial speeches.

On one hand, as of this writing, sites like Fox News and Christianity Daily are promoting Lefler’s story, including excerpts from First Liberty’s letter to the school; in one of several articles it ran on the subject, Fox News also includes multiple excerpts of the religious language from Lefler’s draft and ends with additional comments from First Liberty on Lefler’s constitutional right to free speech. (In a similar — though inverted — fashion, NewsMax and the National Review have published pieces criticizing Smith while remaining silent about Lefler.)

On the other hand, sites like CNN and The New York Times are promoting Smith’s story, including by linking to the viral video of her graduation speech; the headline for the June 4th article from CBS News reads “Dallas high school valedictorian scraps speech, makes impassioned plea for abortion rights” and ends with a statement from Smith’s school district that reads, “The content of each student speaker’s message is the private, voluntary expression of the individual student and does not reflect the endorsement, sponsorship, position or expression of the District or its employees.” (As far as I could tell, no large-scale news outlets who have remained silent about Smith have also published opinion pieces critical of Lefler.)

It might well be true that no single news source could hope to comprehensively report on every newsworthy event, so it might be unfair to imply that Fox News or CNN is doing something wrong by only reporting on one of these stories. It might also be true that one (or both) of these stories is not actually “newsworthy” (in a broadly agreeable sense) — certainly there are differences between what Lefler and Smith did, and we might not want to oversimplify those distinctions for the sake of an easy comparison.

But it seems like defenders of “free speech” (as a blunt principle) are required to support both Lefler and Smith for exercising their right to express their private beliefs in a public forum.

John Stuart Mill is perhaps one of the most famous defenders of an inherent value in free speech; in his 1859 essay On Liberty, Mill argues that opinions are a kind of public good and the absolutely free exchange of differing opinions is the best way to promote ideal outcomes for the epistemic community. No one can hope to know all that there is to know on the complex topics relevant to social life, so we must rely on each other to raise alternate perspectives for our consideration; as he says, “Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.” In short, because he also thought that false opinions would naturally give way to true ones, the more opinions we have on the table, the more likely Mill thought it would be that we would discover the truth.

Furthermore, because he found value in the process of inquiry itself, Mill saw absolutely free speech as an opportunity for the development of individual virtue; as he explains:

“No one can be a great thinker who does not recognise, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead. Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think.”

Akin to common refrains today about “doing your own research” and “thinking for yourself,” Mill believed that free speech was a necessary precondition for an optimal environment to promote intellectual activity (and, by extension, epistemic virtue).

So, suppose that Moe has a social media account and shares on it a story from Fox News about Savannah Lefler’s speech nearly being censored; if Moe believes that this is simply a matter of Lefler’s freedoms being threatened, and he also believes that justice was indeed upheld in Lefler’s case, then he should (upon pain of inconsistency) also be proud of Paxton Smith exercising those same freedoms in her speech. Similarly, if Calvin believes that Smith was doing something honorable by speaking freely (despite going off-script), then he might also be required to view Lefler in a similar light.

If, however, Moe or Calvin only feel like one of these two high school valedictorians was actually doing something praiseworthy, then it must be for reasons other than the value of free speech. This is, of course, as unproblematic as it is likely (indeed, Moe might well approve of public religious speech or not approve of outspoken abortion defenses while Calvin believes the opposite on both counts). In a society where people enjoy the freedom to hold and express such different opinions, neither Moe nor Calvin is clearly doing anything inappropriate by disagreeing on these matters.

But it does seem inappropriate (or, at the very least, confusing) to wave the concept of “free speech” around as a defense of ideas that others might criticize. As Mill stresses, Lefler and Smith being free to express their ideas does not automatically make those ideas correct — indeed, their free expression (on Mill’s view) is one of the best ways to recognize which one (if either) is actually false.

For clarity’s sake, it would be better for Moe, Calvin, and everyone to just say what they truly support and what positions they believe to be correct, rather than hiding behind the double-edged sword of “free speech.”

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“Fake News” Is Not Dangerously Overblown

image of glitched "FAKE NEWS" title accompanied by bits of computer code

In a recent article here at The Prindle Post, Jimmy Alfonso Licon argues that the hype surrounding the problem of “fake news” might be less serious than people often suggest. By pointing to several recent studies, Licon highlights that concerns about social standing actually prevent a surprisingly large percentage of people from sharing fake news stories on social media; as he says, “people have strong incentives to avoid sharing fake news when their reputations are at stake.” Instead, it looks like many folks who share fake news do so because of pre-existing partisan biases (not necessarily because of their gullibility about or ignorance of the facts). If this is true, then calls to regulate speech online (or elsewhere) in an attempt to mitigate the spread of fake news might end up doing more harm than good (insofar as they unduly censor otherwise free speech).

To be clear: despite the “clickbaity” title of this present article, my goal here is not to argue with Licon’s main point; the empirical evidence is indeed consistently suggesting that fake news spreads online not simply because individual users are always fooled into believing a fake story’s content, but rather because the fake story:

On some level, this is frustratingly difficult to test: given the prevalence of expressive responding and other artifacts that can contaminate survey data, it is unclear how to interpret an affirmation of, say, the (demonstrably false) “immense crowd size” at Donald Trump’s presidential inauguration — does the subject genuinely believe that the pictures show a massive crowd or are they simply reporting this to the researcher as an expression of partisan allegiance? Moreover, a non-trivial amount of fake news (and, for that matter, real news) is spread by users who only read a story’s headline without clicking through to read the story itself. All of this, combined with additional concerns about the propagandistic politicization of the term ‘fake news,’ as when politicians invoke the concept to avoid responding to negative accusations against them, has led some researchers to argue that the “sloppy, arbitrary” nature of the term’s definition renders it effectively useless for careful analyses.

However, whereas Licon is concerned about potentially unwarranted threats to free speech online, I am concerned about what the reality of “fake news” tells us about the nature of online speech as a whole.

Suppose that we are having lunch and, during the natural flow of our conversation, I tell you a story about how my cat drank out of my coffee cup this morning; although I could communicate the details to you in various ways (depending on my story-telling ability), one upshot of this speech act would be to assert the following proposition:

1. My cat drank my coffee.

To assert something is to (as explained by Sandford Goldberg) “state, report, contend, or claim that such-and-such is the case. It is the act through which we tell others things, by which we inform an audience of this-or-that, or in which we vouch for something.” Were you to later learn that my cat did not drink my coffee, that I didn’t have any coffee to drink this morning, or that I don’t live with a cat, you would be well within your rights to think that something has gone wrong with my speech (most basically: I lied to you by asserting something that I knew to be false).

The kinds of conventions that govern our speech are sometimes described by philosophers of language as “norms” or “rules,” with a notable example being the knowledge norm of assertion. When I assert Proposition #1 (“My cat drank my coffee”), you can rightfully think that I’m representing myself as knowing the content of (1) — and since I can only know (as opposed to merely believe) something that is true, I furthermore am representing (1) as true when I assert it. This, then, is one of the problems with telling a lie: I’m violating how language is supposed to work when I tell you something false; I’m breaking the rules governing how assertion functions.

Now to add a wrinkle: what if, after hearing my story about my cat and coffee, you go and repeat the story to someone else? Assuming that you don’t pretend like the story happened to you personally, but you instead explain how (1) describes your friend (me) and you’re simply relaying the story as you heard it, then what you’re asserting might be something like:

2. My friend’s cat drank his coffee.

If this other person you’re speaking to later learns that I was lying about (1), that means that you’re wrong about (2), but it doesn’t clearly mean that you’re lying about (2) — you thought you knew that (2) was true (because you foolishly trusted me and my story-telling skills). Whereas I violated one or more norms of assertion by lying to you about (1), it’s not clear that you’ve violated those norms by asserting (2).

It’s also not clear how any of these norms might function when it comes to social media interaction and other online forms of communication.

Suppose that instead of speaking (1) in a conversation, I write about it in a tweet. And suppose that instead of asserting (2) to someone else, you simply retweet my initial post. While at first glance it might seem right to say that the basic norms of assertion still apply as before here, we’ve already seen (with those bullet points in the second paragraph of this article) that fake news spreads precisely because internet users seemingly aren’t as constrained in their digital speech acts. Maybe you retweet my story because you find it amusing (but don’t think it’s true) or because you believe that cat-related stories should be promoted online — we could imagine all sorts of possible reasons why you might retransmit the (false) information of (1) without believing that it’s true.

Some might point out that offline communication can often manifest some of these non-epistemic elements of communication, but C. Thi Nguyen points out how the mechanics of social media intentionally encourage this kind of behavior. Insofar as a platform like Twitter gamifies our communication by rewarding users with attention and acclaim (via tools such as “likes” and “follower counts”), it promotes information spreading online for many reasons beyond the basic knowledge norm of assertion. Similarly, Lucy McDonald argues that this gamification model (although good for maintaining a website’s user base) demonstrably harms the quality of the information shared throughout that platform; when people care more about attracting “likes” than communicating truth, digital speech can become severely epistemically problematic.

Now, add the concerns mentioned above (and by Licon) about fake news and it might be easy to see how those kinds of stories (and all of their partisan enticements) are particularly well-suited to spread through social media platforms (designed as they are to promote engagement, regardless of accuracy).

So, while Licon is right to be concerned about the potential over-policing of online speech by governments or corporations interested in shutting down fake news, it’s also the case that conversational norms (for both online and offline speech) are important features of how we communicate — the trick will be to find a way to manifest them consistently and to encourage others to do the same. (One promising element of a remedy — that does not approximate censorship — involves platforms like Twitter explicitly reminding or asking people to read articles before they share them; a growing body of evidence suggests that these kinds of “nudges” can help promote more epistemically desirable online norms of discourse in line with those well-developed in offline contexts.)

Ultimately, then, “fake news” seems like less of a rarely-shared digital phenomenon and more of a curiously noticeable indicator of a more wide-ranging issue for communication in the 21st century. Rather than being “dangerously overblown,” the problem of fake news is a proverbial canary in the coal mine for the epistemic ambiguities of online speech acts.

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Is Fake News Dangerously Overblown?

photograph of smartphone displaying 'Fake News' story

“Censorship laws are blunt instruments, not sharp scalpels. Once enacted, they are easily misapplied to merely unpopular or only marginally dangerous speech.”

—Alan Dershowitz, Finding, Framing, and Hanging Jefferson: A Lost Letter, a Remarkable Discovery, and Freedom of Speech in an Age of Terrorism

Fake news, false or misleading information presented as though it’s true, has been blamed for distorting national politics in the United States and undercutting the faith that citizens place in elites and institutions — so much so that Google has recently stepped in to provide a tool to help users avoid being hoodwinked. It looks plausible, at first glance, that fake news is a widespread problem; if people can be fooled into thinking misleading or false information is genuine news, their attitudes and beliefs about politics and policy can be influenced for the worse. In a functioning democracy, we need citizens, and especially voters, to be well-informed — we cannot have that if fake news is commonplace.

A recent study found political polarization — left, right, or center — to be the primary psychological motivation behind people sharing fake news. It seems we aren’t driven by ignorance, but vitriol for one’s political opponents. It isn’t a matter of folks being fooled by political fictions because they lack knowledge of the salient subject matter, say, but rather that people are most inclined to share fake news when it targets political adversaries whom they hate. And this aligns with what we already know about the increasing polarization in American politics: that it’s becoming increasingly difficulty for people in different political parties, notably Republicans and Democrats, to agree on issues that used to be a matter of bipartisan consensus (e.g., a progressive tax structure).

In the face of the (alleged) increasing threat from fake news, some have argued we need stronger intervention on the part of tech companies that is just shy of censorship — that is, fake news is parasitic on free speech, and can perhaps only be controlled by a concerted legal effort, along with help from big technology companies like Facebook and Google.

But perhaps the claim that fake news is widespread is dangerously overblown. How? The sharing of fake news is less common than we are often led to believe. A study from last year found that

“[although] fake news can be made to be cognitively appealing, and congruent with anyone’s political stance, it is only shared by a small minority of social media users, and by specialized media outlets. We suggest that so few sources share fake news because sharing fake news hurts one’s reputation … and that it does so in a way that cannot be easily mended by sharing real news: not only did trust in sources that had provided one fake news story against a background of real news dropped, but this drop was larger than the increase in trust yielded by sharing one real news story against a background of fake news stories.”

There are strong reputation incentives against sharing fake news — people don’t want to look bad to others. (Of course, the researchers also acknowledge the same incentives don’t apply to anonymous individuals who share fake news.) Humans are a cooperative species that rely on help from others for survival — and so it matters how others view us. People wouldn’t want to cooperate with someone with a bad reputation, thus most people will track how they are seen by others. We want to know those we cooperate with have a good reputation; we want them to be sufficiently trustworthy and reliable since we rely on each other for basic goods. As other researchers explain,

“[Humans] depend for their survival and welfare on frequent and varied cooperation with others. In the short run, it would often be advantageous to cheat, that is, to take the benefits of cooperation without paying the costs. Cheating however may seriously compromise one’s reputation and one’s chances of being able to benefit from future cooperation. In the long run, cooperators who can be relied upon to act in a mutually beneficial manner are likely to do better.”

Of course, people sometimes do things which aren’t in their best interests — taking a hit to one’s reputation is no different. The point though is that people have strong incentives to avoid sharing fake news when their reputations are at stake. So we have at least some evidence that fake news is overblown; people aren’t as likely to share fake news, for reputational reasons, than it may appear given the amount of attention the phenomenon of fake news has garnered in the public square. This doesn’t mean, of course, that there isn’t a lot of fake news in circulation on places like, say, social media — there could be substantial fake news shared, but only by a few actors. Moreover, the term ‘fake news’ is often used in a sloppy, arbitrary way — not everything called ‘fake news’ is fake news. (Former President Trump, for example, would often call a story ‘fake news’ if it made him look bad, even if the story was accurate.)

Overstating the problem fake news represents is also troubling as it encourages people to police others’ speech in problematic ways. Actively discouraging people from sharing ‘fake news’ (or worse, silencing them) can be a dangerous road to traverse. The worry is that just as former President Trump did to journalists and critics, folks will weaponize the label ‘fake news’ and use it against their political enemies. While targeting those who supposedly share fake news may prevent misinformation, often it will be used to suppress folks who have unorthodox or unpopular views. As the journalist Chris Hedges observed,

“In late April and early May the World Socialist Web Site, which identifies itself as a Trotskyite group that focuses on the crimes of capitalism, the plight of the working class and imperialism, began to see a steep decline in readership. The decline persisted into June. Search traffic to the World Socialist Web Site has been reduced by 75 percent overall. And the site is not alone. … The reductions coincided with the introduction of algorithms imposed by Google to fight ‘fake news.’ Google said the algorithms are designed to elevate ‘more authoritative content’ and marginalize ‘blatantly misleading, low quality, offensive or downright false information.’ It soon became apparent, however, that in the name of combating ‘fake news,’ Google, Facebook, YouTube and Twitter are censoring left-wing, progressive and anti-war sites.”

Perhaps the phenomenon of fake news really is as bad as some people say — though the evidence suggests that isn’t the case. In any event, we shouldn’t conclude from this that fake news isn’t a problem at all; we may need some form of policing that, while respecting freedom of expression, can empower voters and citizens with tools to allow them to avoid, or at least identify, fake news. But we can acknowledge both the need for fake news oversight and the need to significantly curtail that power.

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Freedom of Speech and the Self-Defense Argument

photograph of Alex Jones with megaphone reporting for InfoWars

As a philosopher, I especially value freedom of speech: the idea that everyone should be free to state their opinions and ideas, without fear of retaliation, censorship, or legal sanction — unless, of course, that speech incites violence. This is partly because I revel in odd, counterintuitive, and persuasive arguments that challenge my beliefs and assumptions. Here it appears freedom of speech norms are key to intellectual life: they allow disagreeing parties to express differing opinions without social or political reprisal. If those who disagree keep silent, then intellectual inquiry would stop — how could it not?

The British philosopher, John Stuart Mill, held something like this view, when he defended the instrumental (and personal) value of freedom of speech:

“He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.”

Antiquated language aside, Mill is offering an intellectual reason in defense of freedom of speech: without this liberty, we couldn’t really have an intellectual discussion; there would be viewpoints we may disagree with that wouldn’t be expressed. How can I know I’m right in my political, moral, or religious views, if I don’t know why there are other folks who disagree with me? Notice too this argument applies to cultural and societal norms, and not just the state. If we’re against freedom of expression, as a society, it won’t matter that the state allows.

Despite intellectual reasons for freedom of speech norms, critics have offered compelling moral reasons against it: words can hurt, and hurt badly. Verbal abuse, by example, can leave lasting psychological scars; freedom of speech can, and often is, used as a cudgel against marginalized and minority groups in society. There’s a sense in which freedom of speech can marginalize, control, and even erase individuals and groups that society deems other: folks too different from the rest of society to have a point of view worth heeding. Or we can see how freedom of speech norms can be a permission slip for folks to discuss views antithetical to the moral standing of members of marginalized groups. As some critics of the logic of freedom of speech argue (discussing freedom of speech on campus; but the logic generalizes):

“This logic expects members of marginalized groups to debate their very humanity. As a queer faculty member, it means I am expected to engage in a discussion about the validity of my identity: whether it is real, whether it might be symptomatic of demonic possession or perhaps a mental illness. Students and faculty of color, similarly, are expected to debate the reality of their experiences and their right to equitable systems.”

The logic of this argument — call it the self-defense argument — is that it would be wrong to prop up freedom of speech norms when free speech can be used to question the validity of members of marginalized groups. When supporters of free speech point to the instrumental values of our freedom of speech — for, say, preserving rigorous intellectual discussion — they often leave off that words can do serious harm. And the reply, by freedom of speech supporters, that harmful speech should be met with more speech may not be convincing to someone who, day in and day out, has to hear, either explicitly or in a subtle way, that their rights and identity aren’t really a thing. Perhaps freedom of speech is good for rigorous debate, but only when parties to that discussion are on comparable social footing — a thing people in marginalized groups oftentimes lack.

However compelling the self-defense argument against freedom of speech norms is, it functions as a philosophical double-edged sword. The self-defense reasons one can offer against freedom of speech norms can be rejiggered to support them too. First though, consider an insight from the famous Chinese general, Sun Tzu, who observed the following about war:

“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near […] Even though you are competent, appear to be incompetent. Though effective, appear to be ineffective.”

How are deception and war related to freedom of speech? Banning or restricting speech, and especially speech from individuals and groups who use their power and influence to challenge the validity and identity of marginalized group members, forces such individuals to hide what they really think and believe, and perhaps only express their views in select company. And even if this mostly silences their oppressive speech, it has a nasty by-product: we have a far poorer idea of who holds repugnant and morally objectionable views, and what those views are, than we would if they were allowed to (largely) speak their minds without fear of reprisal.

It is likely good to know whether folks are prejudiced and bigoted, for no other reason than we can keep an eye on them. And that appeal to self-defense should appeal to everyone, especially folks most at risk from freedom of speech abuses. They have a right to know who among them has bigoted and close-minded views, rather than being in the dark about what their neighbors, co-workers, and whatnot actually believe about them. Learning this can be painful, of course, but so is not knowing whether moral objectionable beliefs are pervasive — just as we should prefer, for practical reasons, clumsy and recognizable Nazis over the charming and subtle ones, to illustrate with an extreme case. As the saying goes: ‘forewarned is forearmed.’

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Mill’s Dilemma

image of crowd with empty circle in the middle

One of the most famous defenders of free speech, John Stuart Mill, argued against the silencing of unpopular opinion on the grounds that we would potentially miss out on true ideas and that we need to check our own fallibility. Contained in this reasoning is the idea that in the marketplace of ideas that truth would hopefully emerge. But that marketplace is evolving into several niche submarkets. The use of algorithms and the creation of filter bubbles means that we no longer share a common pool of accepted facts. The recent US election has revealed just how polarized the electorate is, and this raises a moral question about to what extent a democratic public is obligated to look outside of their bubbles.

Regardless of whether the current president concedes at this point, it is difficult to think that the conspiracy theories about the 2020 election will disappear, and this will have long-term ramifications for the country. What this means is that at least two sets of citizens will have very different factual understandings of the world, especially after January. The fake news being spread about the election is filling a demand for a particular version of events, and on the right this demand is now being met with news sources whose content is ever more divorced from the reporting that the rest of us get. For example, the backlash by Trump supporters over Fox News’ projected win for Biden has led many on the right to label the network as “too liberal” and to switch to alternatives who are more willing to reflect the reality that is desired rather than the reality that exists. Similarly, conservatives feeling that their views have been censored on Facebook or Twitter have been drifting towards new platforms which are tailor-made to reflect their beliefs and are rife with misinformation.

The long-term concern of course is that as different political perspectives confine themselves to their own apps, sites, and feeds, the filter bubble effect becomes more pronounced. The concerns that Mill had about censorship in the marketplace of ideas isn’t the problem. The problem is that the pluralistic marketplaces that have spawned, and the different sets of political worldviews that have been created, are becoming insular and isolated from one another and thus more unrecognizable to each other. This is a problem for several reasons. Many have already pointed out that it allows for misinformation to spread, but the issue is more complicated.

The political bubbles of information and the echo chamber effect are making it easier to escape that check on fallibilism for those all across the political spectrum. It also makes addressing real world problems like climate change and COVID-19 more complicated. As one nurse has said, people are literally using their last breaths proclaiming that COVID isn’t real as they die from the disease. When recently asked about the fact that President Trump received over 70 million votes in the election, former President Obama opined that the nation is clearly divided and that the worldview presented in rightwing media is powerful. He noted, “It’s very hard for our democracy to function if we are operating on completely different sets of facts.”

As many experts have testified, this split in worldview is not going away. The moral issue isn’t merely that so many people can believe falsehoods or that truths may be buried; it’s the way that “facts,” as understood within an epistemic bubble, are related to each other and how political problems get defined by those relations which all lead to incommensurability. The moral issue is thus practical: how does a society where everyone is free to create their own worldview based on their preferences and have their views echoed back to them function when we can’t recognize what the other side is talking about? As the election debates demonstrated, certain dog whistles or narratives will resonate to some and not be recognized by others. Even if we put facts, fact-checking, and truth aside, do we still have a moral obligation to look outside of our own bubble and understand what our political opponents are saying?

In a recent paper from Episteme on the subject, C Thi Nguyen argues that we need to distinguish between epistemic bubbles and echo chambers. In the former, information is left out because a consumer is only provided certain sources. For example, if I open links to certain kinds of articles in a news feed, an algorithm may begin to provide more articles just like it and exclude articles that I am less likely to open. Thus leading to an epistemic bubble. On the other hand, if I specifically avoid certain sources or exclude certain sources I am creating an echo chamber. As described, “Both are structures of exclusion—but epistemic bubbles exclude through omission, while echo chambers exclude by manipulating trust.” Breaking free from an echo chamber is far more difficult because it involves using distrust of non-members to epistemically discredit them.

Trust is obviously important. Attempts to undermine fake news outlets or engage in censorship have only seemed to inspire more distrust. Fox News tries to maintain journalistic integrity by projecting an election, but this breaks the trust of Fox News viewers who leave for another network which will reflect their wishes. Since Twitter tags misleading tweets, conservatives are opting for other means of sharing their views. It seems the more that the so-called mainstream media tries to combat disinformation spread, the more it creates distrust. Simply trying to correct misinformation will not work either. Studies of disinformation campaigns reveal just how difficult it is to correct because even once a false claim is corrected, it is often the false claim that is remembered.

So, what is the alternative? As mainstream media attempts to prevent the spread of misinformation on their own platforms, trust in those platforms declines. And those who are left watching mainstream media, even if they do want truth, lose a check on their own biases and perspectives. Do the rest of us have an obligation to look at Newsmax, Breitbart, or Parler just so we can see what epistemic framework the other side is coming from? It may not be good for the cause of truth, but it might be necessary for the cause of democracy and for eventually getting the country to recognize and respond to the same problems. It may be that the only way to rebuild the epistemic trust required to break free from our echo chambers is to engage with our adversaries rather than merely fact-check them. By preventing the marketplace of ideas from balkanizing, there may still be a cheerful hope that through the exchange of ideas truth will eventually emerge. On the other hand, it may only cause more disinformation to spread even easier. Mill’s dilemma is still our dilemma.

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Regulating Companies to Free People’s Speech

photograph of ipad with Trump's twitter profile sitting atop various blurred newspaper front pages feating him

US President Donald Trump has signed an executive order instructing the Federal Communications Commission (FCC) to review legislation that shields social media platforms, like Twitter and Facebook, from liability for content posted by their users. This move appears to be a retaliatory gesture against Twitter for linking fact-checking sites to President Trump’s tweets opining the vulnerability to fraud of mail-in ballots for upcoming elections. This is the second time President Trump has drafted an executive order to review this kind of legislation. The first time was in August 2019. But this isn’t simply (another) Trump temper tantrum. Rather it is the latest push in a concerted and bipartisan effort to bring so-called “Big Tech” companies to heel. These efforts in general face a long road of legal and philosophical challenges, and Trump’s effort in particular is likely doomed to failure.

The relevant legislation is the Telecommunications Act of 1996, and more specifically the “Good Samaritan” clause of Section 230 therein. This clause states that no “provider or user” of an “interactive computer service” can be sued for civil harm because of “good faith efforts”  to restrict access to “objectionable” material posted by other users of their service. Other portions of Section 230 give providers and users of interactive computer services immunity against being sued for any civil harm caused by content posted by other users. Essentially, companies like Twitter, Facebook, and Google are given broad discretion to handle the content posted on their sites as they see fit.

Conservative and Republicans complain that Big Tech companies harbor anti-conservative political bias, which they enforce through their platforms’ outsized influence on the dissemination of news and opinion. Texas’ Senator Ted Cruz has argued that Facebook has censored and suppressed conservative expression on its platform. President Trump’s frequent screeds against CNN, The Washington Post, and Twitter echo the same sentiment. In 2018, Google CEO Sundar Pichai was grilled by Republican lawmakers about alleged anti-conservative bias in his company’s handling of search results. Missouri’s Senator Josh Hawley in 2019 introduced a bill to amend Section 230 to remove its broad protections from liability. Hawley’s bill was specifically geared toward addressing alleged anti-conservative bias and offered reinstatement of Section 230’s protection only to companies who submitted themselves to an audit showing that they pursued “politically neutral” practices.

Liberal and Democratic concerns focus largely on the spread of harmful misinformation and disinformation by foreign actors aimed at influencing US elections. But there are two points of bipartisan agreement. The first concerns the scope and magnitude of Big Tech’s influence on the public exchange of information. Agreement here manifests itself in the what criteria lawmakers have put forward as triggering expanded liability, namely size. Senator Josh Hawley’s 2019 bill targeted companies with, “30 million monthly active users in the US, more than 300 million active monthly users worldwide, or more than $500 million in global annual revenue.” The other is point of agreement concerns posted content related to human trafficking for sex work. Legislation amending the Telecommunications Act of 1996 pursuant to curtailing human trafficking was passed with bipartisan support in 2017.

All of this bears on the right to freedom of speech, interpretation of which is a perpetually contentious issue. Conservatives complaining about censorship and suppression allege that their freedom of speech is being infringed by the actions of Big Tech. However a recent judicial decision made short work of one such complaint. The US Court of Appeals dismissed a suit claiming that Twitter, Facebook, Apple, and Google had conspired to suppress conservative speech. In their ruling the judges noted that the First Amendment only protects free speech from interference by government action. This illustrates an important point about the nature of rights that is often missed.

Rights can be thought of as comprising three elements: a right-holder, an obligation, and an obliged party. With the right to freedom of speech the right-holder is any legal person (which includes corporations), the obligation is to refrain from suppression/censorship, and the obligated party is the US government. Constitutional rights tend to follow this pattern. Other rights oblige parties other than just the government. A family can sue someone for killing their mother, or the state may sue on the murder victim’s behalf, because a right to life is both understood to exist at common law and is also enshrined by legislation in statutes against homicide. Here the right holder is any individual person, the obligation is to refrain from killing the right-holder, and the obligated party is every other individual person. (Incidentally, both of these are examples of negative rights: rights which entitle the bearers to protection from specific harmful treatment. There are also positive rights, which entitle the bears to the provision of specific goods, services, or treatment.)

As a matter of principle there is no general legal basis for complaints against Big Tech for suppressing or censoring expression. They are not government actors and so are not obviously bound by the right to free speech as expressed in the first amendment. The US Court of Appeals decision mentioned above says as much. Further these companies are themselves legal persons with respect to political speech under US law. This was one the bases of the US Supreme Courts’ (in)famous Citizens United decision. Because corporations are people too, their political speech is protected. Twitter flagging President Trump’s posts with fact-checking tags is just them exercising their speech in competition with President Trump’s speech. This is the much vaunted “marketplace of ideas” of which conservatives are usually enamored.

As a matter of law Trump’s draft executive order is largely toothless because the text of Section 230’s Good Samaritan clause allows Big Tech companies to take “good faith” actions to “restrict access to … material” even when “such material is constitutionally protected.” Despite the opinion of legislators, there is not even a whiff of a political neutrality requirement. While such a requirement used to exist, it ceased being enforced in 1987 and was fully obliterated in 2011. The decision to cease enforcing this requirement was made by US President Ronald Reagan’s FCC Commissioner, Mark Fowler, because it was seen as violating first amendment protections.

Infringement by the government on freedom of speech is held in court to strict scrutiny. Part of the strict scrutiny standard is that the infringement promotes a “compelling government interest.” If the government exercises its authority over private individuals or groups under the auspices of protecting freedom of speech, what standards will the government ask be met? The entire point of rights like the freedom of speech is to permit persons acting in a private capacity to determine things for themselves. As many critics and advocacy groups have pointed out, allowing the government to set these standards is harmful to free speech rather than protective of it. Legislators appear to remember this only as it suits their political needs.

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Freedom of Speech and Sexist Tweets

photograph of Indiana University campus

On November 7th, 2019, Indiana University Bloomington economics professor Eric Rasmusen tweeted a link to an article titled, “Are Women Destroying Academia? Probably.” In his tweet, Rasmusen pulled out one quote in particular as worthy of special emphasis, “geniuses are overwhelmingly male because they combine outlier high IQ with moderately low Agreeableness and moderately low Conscientiousness.” Among other things, the article claims that 1) the inclusion of women as students in universities has led to the deterioration of rigor in those institutions because emotion has replaced the cold, unemotional evaluation of facts and arguments, 2) women are highly prone to “Neuroticism,” precluding them from logical thought, 3) the presence of women in academia reduces the production of the “genius type,” a type which is overwhelmingly male, and 4) female academics are too high in agreeableness but low in I.Q. to adequately nurture the mind of the male genius. Thus, the article claims, the inclusion of females in academia both as students and as professors, is harmful to male education and has a chilling effect on the number of geniuses produced by universities.

This isn’t the first time that this professor has made headlines for his tweets. In 2003, Rasmusen came under fire for his comments on the fitness of male homosexuals to serve as teachers. In a response to this ongoing controversy, he re-affirms that position,

“I am on record as saying that homosexuals should not teach grade and high school. I don’t think they should be Catholic priests or Boy Scout leaders either. Back in that kerfuffle when I was widely attacked for saying that, I was careful to say that academia was different. Professors prey on students too, so there is a danger, but the students are older and better able to protect themselves, and there is more reason to accept the risk of a brilliant but immoral teacher.”

In response to the most recent tweet, people immediately began to call on the university to terminate Rasmusen’s employment. Lauren Robel, Executive Vice President and Provost of Indiana University Bloomington issued a statement condemning Rasmusen’s actions as “stunningly ignorant, more consistent with someone who lived in the 18th century than the 21st.” She also makes it perfectly clear that the university cannot fire Rasmusen for his comments because the First Amendment protects them.

The university did take some corrective action in response to Rasmusen’s behavior. In her statement, Robel provided the details of the steps the university is taking. First, no class offered by Rasmusen will be mandatory. In this way, students can avoid taking classes from him entirely. Second, grading of students in Rasmusen’s classes will be blind to avoid the bias that might be present. This means that assignments will be set up in such a way that Rasmusen will not know which student’s paper he is grading when he is grading it. If the nature of certain assignments is such that they cannot be graded in this way, a different faculty member will grade those assignments. With these measures in place, students can avoid any potential bias that they might expect from someone who has expressed the kinds of ideas that Rasmusen has expressed.

The public response to the incident involves some confusion about why exactly it is that Rasmusen can’t be fired. Some people view this incident as an indictment of the tenure system. It is not Rasmusen’s tenured status that makes it the case that he can’t be fired over this issue. Indiana University Bloomington is a public, state institution, funded by taxpayer dollars. As such, they cannot fire a professor for the content of the speech he or she engages in as a private citizen, and on his twitter account, Rasmusen was speaking as a private citizen.

Legal protections aside, there are compelling moral reasons that speak in favor of this position. It is valuable, both as a matter of personal liberty and for the good of society, for ideas to be expressed and evaluated. It is important to the aims of democracy that people can speak truth to power. In some cases, the speech involved will be very ugly, but the general practice is so important that we must be committed to it come what may. Punishing speech on the basis of content may seem to make good sense under certain conditions, but good, well-intentioned people don’t always have the final say in what “makes good sense.” To protect our basic liberties, we might sometimes have to be content with procedural justice, even when it seems to fly in the face of substantive justice.

Even if Rasmusen were not speaking as a private citizen, it is possible that his claims should still be protected because of the value of academic freedom. Courts have consistently ruled that academic speech—speech related to teaching and scholarship—is deserving of special protections. There are compelling moral reasons for this position as well. The practice of putting forward ideas that are then critically evaluated by peers is essential to the pursuit of truth and justice. When only the dominant view can be expressed without consequences, that dominant view becomes dogma. Its adherents believe it, not as the result of patient and diligent investigation, but because they would be punished for pursuing alternatives.

On the other hand, there are some real moral costs associated with keeping Rasmusen on the faculty. He seems to be sympathetic to the idea that the presence of women diminishes the quality of a college education. In light of this, it would probably be rather difficult to feel comfortable as a female student in Rasmusen’s classes. His female colleagues are also likely to find the climate he has created very unpleasant. In addition, to treat the ideas expressed by Rasmusen as if they are just as likely to be true as any other competing idea ignores the fact that we have made significant progress on these issues in recent decades. It encourages the conclusion that there is no such thing as a settled moral issue. The crusade for women’s rights was predicated on the idea that, to borrow a phrase from Jean Paul Sartre, “existence precedes essence.” The attitudes that other people have about a woman’s “function,” shouldn’t construct limitations on who she can become. Autonomy is generally viewed as tremendously valuable, in part because of the role that it plays in self-creation. When views like Rasmusen’s are treated as if they are deserving of protection, the result is discouraging (to say the least) for women, particularly young college women who are just beginning to craft their own lives.

Finally, there is the issue of moral character. Rasmusen’s behavior on social media demonstrates either a misunderstanding of or disrespect for the role that he plays as an educator. The article focuses on the role that universities play in creating “geniuses.” Geniuses are rare, and genius isn’t obviously valuable for its own sake, its value depends on how it is used. This isn’t even close to the primary role of a public university. The role of a professor at such a university is to assist in developing a well-rounded, educated citizenry. Ideally, professors should be preparing students to live productive and meaningful lives. Good teaching requires empathy for students, and a genuine desire to understand the conditions under which they are apt to learn. Professors should remember that they are public figures. This means that before posting on social media, professors should reflect on the question of whether what they are posting will contribute to a negative classroom environment that might make it more difficult for certain students to learn.

Morality is a social enterprise, and young people look to adults in positions of authority to determine how they ought to behave. It may seem unfair that public figures carry more of a burden than others to conduct themselves reasonably and with dignity on social media platforms. Ideally, a person who has achieved a certain high level of influence values virtue and has worked hard to develop a strong moral character. People who care about character are the kinds of people who deserve to be in these positions in the first place. On social media and elsewhere, public figures should think carefully about the implications of their messages.

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The Free-Speech Defense and a Defense of Free Speech

Image of two human stick-figures arguing

Of the things about which people across the political spectrum deeply care, morally and politically, freedom of speech is very highly valued – even if there are disagreements about exactly what it licenses you to say and what, if any, caveats should be placed upon it. In recent years free speech has emerged as a hot topic for conservatives – often taking the form of pushback against ‘political correctness.’ The view that ‘liberal’ or ‘left-wing elites’ are trying to silence those who do not gel with a progressive social agenda is a particular flashpoint. 

Yet, in these quarters, one detects a pattern which suggests that the principle itself is not quite what is at stake: those calling for freedom of speech or decrying its endangerment are often simply defending a desire (viewed by them as a right) to say certain things against others for whom those things are offensive or harmful (for examples see my “Separating the Freedom of Religion from the Right to Discriminate” or Kenneth Boyd’s “Online Discourse and the Demand for Civility” also on this site). In many such scenarios there is a legitimate question over whether certain brands of archconservative really are staunch supporters of the principle of free speech ‘all the way down,’ or whether there is a tendency to use the concept as a way of crying foul when someone calls out the noxious content of their views.       

Something like this seems to be the case in a political stoush that has erupted in Australia over the inaugural Australian Conservative Political Action Conference, or CPAC to be held in Sydney this week. The conference is backed by the powerful American Conservative Union (ACU), and speakers include Brexit campaigner Nigel Farage, former Australian prime minister, climate change denier and staunch opponent of marriage equality Tony Abbott, Fox News host Jeanine Pirro, Raheem Kassam, editor-in-chief of Breitbart and an especially noxious misogynistic loudmouth, One Nation politician Mark Latham. 

The caliber of speakers and the conference agenda has many people worried about the echo-chamber of right-wing ideology, as well as the growing influence of American-style firebrand conservatism on Australia. The ACU’s executive director Dan Schneider and ACU chairman Matt Schlapp have joined forces with the Australian right-wing think-tank the Institute of Public Affairs (IPA) and the conservative campaign group Advance Australia – two of the event’s major sponsors.

High-profile opposition Labor senator Kristina Keneally criticized the conference, labeling it as a “talkfest of hate,” and called on the government to deny a visa to Raheem Kassam, citing Kassam’s suggestion that Scottish first minister Nicola Sturgeon’s mouth and legs should be taped shut “so she can’t reproduce.”

Prime Minister Scott Morrison defended several of his government’s MP’s speaking at the event on the grounds of “the principles of freedom of thought, speech, expression and association.” Daniel Wild, the IPA’s director of research and a speaker at the event, called Keneally’s criticisms “yet another example of how Labor wants to stifle free speech, open discussion and dialogue in Australia. This is a threat to democracy.” Donald Trump Jr. weighed in tweeting: “one of the major political parties in Australia is trying to silence Raheen Kassam because of his conservative views. The insanity needs to stop!”

Free speech is, according to all these defenses, under attack. Luckily, the conference agenda will have this important topic covered. The conference organizer Andrew Cooper said that “It will include a lot of discussion on free speech, and what I would call the authoritarian left’s opposition to it.” 

Freedom of speech is a core tenet of old school political liberalism. The best-known formulation of the argument for freedom of speech is still to be found in John Stuart Mill’s book On Liberty, published in 1859. Mill may be regarded as the father of political liberalism and the book is still one of its central texts. 

A central concern for Mill was the limitation of the coercive power of the state on the freedom of the individual. Mill’s argument for the freedom of thought and discussion is given in chapter 2 of On Liberty, and in it he aims to show that there should be no attempt “to control the expression of opinion.” He argues that truth or falsity of an opinion cannot be a deciding factor in whether that opinion is disseminated, because such a judgment cannot always be made in advance – and if such a judgment cannot always be made with certainty, then it should never be made at all – just in case the judgment turns out to be wrong. In other words, it is better to let some falsehoods roam free than to imprison a truth. 

Mill also thinks that exposure to all views, however erroneous or harebrained, will actually help people’s capacity to discern between truth and falsehood: whether an opinion is true or false, its being aired will, in either case, be useful for discovering and maintaining the truth — and as such should be welcome. To assume that because one thinks a view is false it should be suppressed, Mill argues, is to assume infallibility of one’s beliefs. Yet, he thinks, all of our beliefs must remain open to revision in possible light of further observation. As such, discussion must remain free – even on issues that we think are established with certainty. Mill argues that people are rarely in the position to see the “whole truth” for themselves, and the only way for it to emerge is by “the reconciling and combining of opposites.”

The point, for Mill, is that a liberal democratic society cannot afford to compromise on the principle of absolute freedom of speech because every which way lies the possible suppression of truth, inflated assumptions about one’s own possession of it, and the possibility of the fallibility of one’s views. 

But also, fundamental to Mill’s view is that the truth, or the ‘right’ opinions will ultimately win out; and that prevails upon a particular view of the public’s engagement with political life, commitment to rational and critical thinking, and capacity to detect and then ostracize false opinions. 

Mill’s liberalism puts a lot of faith in individuals as the best judges of whether a viewpoint is truthful and whether it deserves attention and assent. That Mill puts such faith in individuals is one of his philosophy’s merits, and also one of its pitfalls. It is arguable that recent political events in Australia, the USA, and Britain (not to mention many other countries) suggest this expectation may be too optimistic. It is also possible to point to other reasons for such developments which Mill may not have accounted for, such as dangerous forms of populism and demagoguery. 

Nevertheless, support for Mill’s argument for freedom of speech remains solid, and one of its consequences, or costs, is certainly the airing of opinions and views we may not agree with or may not like. Australian Prime Minister Scott Morrison makes a defense of the CPAC conference almost worthy of Mill in arguing that the way to defeat “unacceptable views is through debate.” 

Two further points are worth noting, as some evocations of freedom of speech as a defense for the airing of certain views don’t quite fit the picture of free speech Mill envisaged. 

First, Mill argues that offensive, incendiary or harmful opinions are not likely to fulfill the role of helping to bring truth to light, and thus do not deserve an equal hearing and do not constitute the kind of ‘debate’ that Morrison apparently wants to defend. 

The second point is that defending the principle of free speech is one thing, and it is generally a good thing, but it does not justify the content expressed. To defend offensive views through reference to the principle of free speech is disingenuous. A leader does not have to hide behind freedom of speech – but is perfectly free to defend the right while also disavowing the message.

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Debating the Permissibility of Printable Guns

Photograph of a 3D printer with a person's hand on a computer mouse nearby

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

In 2013, Cody Wilson, a self-described anarchist, made headlines when he posted plans for a 3D printable pistol called “The Liberator” online.  The state department intervened and shut down the site, but not before the plans for the weapon were downloaded over a million times.  Wilson promptly sued the government. This week, the government reached a settlement with Wilson.  The settlement is quite favorable to Wilson and other gun rights advocates—it allows Wilson and others to proceed with their mission to post the instructions online. Continue reading “Debating the Permissibility of Printable Guns”