Absolute Free Speech Doesn't Exist/ Updates
Updates
First, thank you so much to everyone who has become a paid subscriber to this newsletter, and/ or donated. It means a lot, it helps me justify doing this work on top of other writing and research, and it has tangible benefits. For example, this month you helped me pay for some minor surgery our cat Tig (or Tiglet, or if we’re being formal, Antigone, or Tiger Cat) needed this week. Tig is not happy about wearing a cone of shame, but we are happy to have been able to have a worrisome growth removed from her cute little face. (It was not cheap!) So thank you!
Here is Tig (right), looking for love in all the wrong places:
Across the land, extremist groups continue to double down on transphobia, antisemitism, and white supremacy by primarily targeting books by and for marginalized communities in state-level and local bans. Most recently in South Caorlina, a single person challenged 673 different titles in Dorchester School District 2 using a list that looks like it was copied directly from BookLooks-style websites. In Florida, a district is drawing clothes over the characters in classic children’s books because Moms for Liberty thinks everything is porn.
In South Carolina, the State Board of Education meets next week (Tuesday, February 13 at 1:00 in the Rutledge Building on Senate Street in Columbia) to discuss a proposed regulation (the final version of which has still not been uploaded to the website; here’s a copy) that explicitly codifies a version of “parental rights” that gives individual “taxpayers” the ability to flag books for removal on behalf of every other parent and student in the state. If you’re in the state and you can come testify, please do. Get there early, because proponents of book bans will likely show up in force, as well. There is a world where a state regulation actually helps to better balance the competing interests in text selection, and I encourage you to contact Board members to suggest amendments which might make that world a reality.
Similarly, South Carolina and other states are doing their best to villainize transgender people and to outlaw gender-affirming care for minors, while requiring educators to out students to their parents, even in circumstances where that might be dangerous. I wrote about this for the Center for Educator Wellness and Learning here.
What is free speech?
All of which has me thinking about free speech. Last week, I wrote about about Freedom of Information Act Requests revealing complaints that called for the censorship of books in schools.
I’ve frequently witnessed some of the angriest proponents of book bans use the argument that school districts and governments in general are trampling upon their right to “free speech” by, for example, asking them not to curse or read graphic sex scenes in front of small children at school board meetings. This view of free speech, expansive on its surface, seems to actually be pretty limited— I should be able to say whatever I want, including if what I want to say breaks the rules— real or imaginary— I’m claiming to care so much about.
If you’ve taught or spent time with adolescents or teenagers, you have probably heard some variation of the same argument that students shouldn’t be disciplined, punished, or otherwise held accountable for words they have said— like profanity— because America protects “freedom of speech”.
But legal free speech in America has always had significant, built-in limitations. There’s the famous example that you can’t yell “Fire!” in a crowded theatre and rely on free speech arguments to protect you from liability. This example evidently comes from the Supreme Court Case Schenck v United States. The former president is currently under indictment, with prosecutors arguing the words he said helped to incite the January 6 insurrection which resulted in the deaths of five people. Whether he is found guilty or not, the existence of these court cases rests on the premise that even the president cannot simply say whatever he wants without consequences.
But more broadly, the idea that there is any kind of “absolute” right to free speech just doesn’t hold up. (Just ask Elon Musk, who famously declared himself a “free speech absolutist” on Twitter, only to fire and ban from Twitter a whole bunch of people for saying things he didn’t like after taking over the platform.)
The general freedom to express ideas, after all, depends on specific restrictions. In a classroom, if there are not procedures to be recognized during a discussion, for example, one student or teacher may monopolize the discussion, or talk over others, until the time to speak has run out. “Speech” isn’t unlimited in a practical sense, and taking too much of it for yourself can infringe upon the speech of others. In a society without any regulations on speech, groups can— and do— use their “absolute free speech” to inspire acts of violence against their opponents.
Philosopher Karl Popper’s famous “paradox of tolerance” addressed exactly this problem: open societies, he said, value tolerance. But over-valuing tolerance of all ideas leads to tolerating things like Nazism and fascism, ideological movements that are driven by violence and the domination of would-be rational discourse with violent rhetoric and tactics designed to end free speech. By tolerating Nazis, for example, we risk losing free speech, not gaining it.
And so what the FOIA requests revealed, generally, was that individuals and groups across South Carolina have— at times explicitly— abused their own “free speech” (challenging books during a political environment of heightened and irrational scrutiny of school book choices) to curb not only the “speech” of authors and publishers, but also the “speech” of students, educators, parents, and community members who don’t want these particular books banned.
The idea of “absolute speech,” at best, is a kind of immature quasi-libertarian fantasy, where one person can have unlimited rights without somehow infringing upon the rights of others. At worst, it is a bad-faith argument made by the very people who want to dominate and crush the viewpoints of others. It seems to be a common strategy wielded against progressives and proponents of an open society, because it essentially argues You said I should be tolerant of differences in society, but you are being hypocritical because you aren’t tolerating my Nazi/ white supremacist/ transphobic/ racist/ fill in the blank views.
And of course, tolerating the ideas of others is essential if the goals is openness, discussion, and freedom from state-mandated opinions and beliefs.
As Popper pointed out, an obvious solution is acknowledging that tolerance of every behavior is just anarchy, and anarchy doesn’t automatically lead to more freedom:
Less well-known is the paradox of tolerance: unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.
(The Open Society and Its Enemies, note 4 to Chapter 7)
This is why I can disagree with most of the choices of would-be censors (because allowing students to select Dear Martin from the library, or read Between the World and Me in an AP Language course are not actions that suppress anyone’s free speech) while also believing Substack, for example, was wrong to push back on calls to deplatform literal Nazis by making the same tired “we support free speech” argument.
In Popper’s formulation, we can tolerate almost all speech except the speech of people whose only goal in entering the conversation is to keep others from participating.
In the real world, there are few absolutes. We could have a meaningful conversation as a society about what we do think students should be required to read, about what they should be allowed to read, and about what materials might potentially be harmful. The thing about the “parental rights” version of book censorship is that it generally precludes having real conversations because it frames choices about what to read as the prerogative of individual parents, but then irrationally extrapolates that “individual parent” (or “taxpayer”) out to the whole community. It argues, I have a right to decide what my children read, and the only way to ensure that right is to take away the right of any other parent who disagrees with me about what their own children read. It also removes students— who have their own rights— from the equation almost completely.
But the fundamental problem with widespread censorship is that there is no world in which you get to live around other people and be completely happy about everything that everyone else says or writes, or about the ideas that you are forced to encounter. That world doesn’t exist. Absolute free speech doesn’t exist.