In Explaining Free Speech to the Twitterati, Max Borders at the American Institute for Economic Research writes about free speech and free speech on private property. If someone holds up their private property as a public forum, should they be held to respect free speech, including free speech that the owner doesn’t like? Additionally, just because the US Constitution is a limitation on government, does that mean that the concept of free speech holds no moral suasion against private individuals?
Reason and free enquiry are the only effectual agents against error. … Reason and persuasion are the only practicable instruments. To make way for these, free enquiry must be indulged; and how can we wish others to indulge it while we refuse it ourselves.– Thomas Jefferson, from Notes on the State of Virginia
If ever you were wondering about free speech, you could turn to Twitter. The Twitterati will tell you everything you need to know about free speech and what it means in 280 characters or less.
First, they will tell you that free speech has nothing to do with anything that happens on Twitter because Twitter is a private company.
Private companies may control speech as they wish “ya dopes” because the Constitution only protects citizens from censorship by the U.S. government.
Free speech has been reduced to 45 words. And if you are not a U.S. citizen, those words don’t apply.
Then, they will tell you that critics of private companies like Twitter are, therefore, not only out of bounds but that free speech concerns are an affront to freedom of association (and therefore also disassociation).
From this, you might think that apologists for digital lynch mobs and private censorship have been worshipping at the altar of libertarian brutalism. Though technically accurate in Abstractionland, narrow construals of free speech overlook more than a few essential points.
Free Speech: Letter and Spirit
In the United States, it is true that the First Amendment only protects people from government censorship. It is also true that private property rights trump free speech. Property owners generally make the rules about speech on their property, and those rules can be illiberal, arbitrary, and grossly unfair as long as the government is not involved in setting those policies. (The latter point is an important qualifier to which we’ll return).
But the thing about free speech is it has a letter and a spirit, which the Founders understood.
So, apparently, does Elon Musk.
The letter is the law, but the spirit transcends the law among conscientious people. And Musk is one of them. He just bought the largest stake in Twitter, which will surely test the Twitterati.
But according to liberals such as John Stuart Mill, we ought to practice speech toleration even in private settings. The ought here is moral, not legal. If one objects to censorship or suppression on private platforms, she appeals to the spirit of free speech, which differs from the First Amendment. One can and should apply moral suasion beyond a strict legal doctrine. We do it all the time. Sure, some people get confused about the difference, but some free speech “scolds” are simply appealing to an established liberal doctrine, which we call toleration.
By analogy, let’s imagine that the same brutalist libertarian criteria applied to people living in the Jim Crow South. Regarding the law, one can agree that property rights and freedom of association should always trump free speech in private settings. So when a racist denies entry to a person of another race, solely because of his race, one might argue that is wrong. To forbid an innocent human being from sitting at a lunch counter or attending a university, even if the owner’s decision comports with a principle of property rights and freedom of association, would still be wrong. That’s because discrimination based solely on race is wrong under most liberal ethics. So if Adam Bates (referenced above) is determined to protect “freedom of association,” but refers to anyone who evokes the spirit of free speech as “scolds,” he must also be prepared by his own narrow rationale, to defend the racist owner of the lunch counter in our example.
Good luck with that.
By Twitterati logic, anything goes as long as it’s legal, and if it’s legal, you should just shut the eff up. But that sort of thinking excludes too many extra-political and extra-legal standards and practices that give rise to peace and progress.
The Atlantic’s Conor Friedersdorf tries mightily to find the spirit of free speech among the free-speech reductionists.
Friedersdorf got a number of dismissive responses including this, from someone I generally respect and consider a liberal:
Therefore, the idea that “consequence cultures” has, and ought to have, no limiting principle at all, nothing that checks it, questions it, or stands in its way–according to reductionists. Not even the greatest Enlightenment liberals offer anything of substance to the conversation because they appeal to points on spectra that don’t exist.
What a godawful failure of imagination.
The “consequences” of consequence culture can therefore be completely arbitrary – the contrivances of a mob or any illiberal march through the institutions – as long as they do their job. That job is to contrive “consequences” that push people into submission, subjection, or silence.
Too many people are “basically okay with that,” which is one reason discourse has turned to shit, not to mention much of social media. I suspect those who tolerate such intolerance enjoy watching Twitterati team sports more than they seek understanding or strive to uphold any principles essential to community life outside The Church of State.
Those who think they have some sort of gotcha when it comes to this two-step about “private companies” might be Brutalist Libertarians, Regime Leftists, or something in between — but they don’t seem to be liberals. To be a liberal, after all, is to think that the best antidote to bad opinion or “misinformation” is higher-quality speech and evidence that tracks truth and respects discourse norms. Liberals seek to protect speech in both spirit and letter to a greater extent, even if such protections can never yield perfect outcomes. The discursive process generally creates better outcomes over time.
In the domain of morality – which is distinct from politics or law – people have to practice it together for community to form and strengthen. Toleration is a moral practice. It’s no wonder that beltway types never seem to appreciate that. Washington is a cesspit where good opinion is about whom you know and what you’re trying to get out of them. Twitter is just Washington’s domination discourse extended to the centralized internet. In other words, it’s politics all the way down. The moral fibers that help weave people together in community and collective intelligence might as well be dental floss among the purveyors of politics, policy and punditry.
But human progress depends on a dance of cooperation and competition rooted in discourse norms designed for people to track truth. As we have indicated, one such discourse norm is the practice of speech toleration. As Mill writes in On Liberty,
The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
Now, I have a Jewish daughter. My appreciation of Mill doesn’t mean I’ll invite neo-Nazis into my home to say hurtful things to her, you know, out of some disproportionate sense of liberal toleration.
I’m simply arguing we can all do better, even if there are no bright lines or points on a spectrum. For example, it is possible to have moderated platforms with far more liberal speech policies. The owners of said platforms ought to liberalize those policies, notwithstanding real threats from authorities. Likewise, individuals needn’t be so quick to press the block button when someone disagrees with them. Instead, they can try harder to use it with patience and discernment in a framework of liberal toleration. Why? At the very least, contact with diverse ideas, viewpoints, and opinions help one test and strengthen one’s position.
Illiberalism Goes Viral
Mill’s insights have perhaps no more important application than in our effort to understand an evolving virus during a dangerous pandemic. School marms, censors, and public health authoritarians have too frequently sought to silence dissenting voices, mock alternatives, and belittle justifiable questions about any number of illiberal public health measures. And, ironically, they have also been the greatest purveyors of misinformation…(continues)