It is fashionable to be “nuanced” when talking about freedom of speech. I often read that speech should be restricted when it is harmful, hateful, and violent. The claim looks innocuous, it even bears passing resemblance to that old liberal formula “do and say what you want as long as you don’t hurt others;” a commitment to the idea that freedom of expression is not permission to jeopardize other freedoms. The resemblance is misleading. If the claim were taken seriously, it would impede, not promote, the cause of justice. There are only a handful of legitimate reasons for shutting people up, and this is not one of them.
Free Speech and Violence
Violence has long been a reason to limit speech. Put simply, where speech incites violence, it is not protected. Here is liberal godfather John Stuart Mill in ‘On Liberty‘:
No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act. An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard.
But the link between speech and violence is difficult to prove, as even this canonical example shows. How explicit must the speech outside the corn dealer’s house be? If incite means “to move to action; to stir up; to spur on; to urge one,” how to tell when someone has been moved, stirred, spurred, or urged? Reason dictates that a vague threat be treated differently to an explicit command to violence. If I call for a violent protest three years from now, it is unlikely to have much impact – no one will remember what I said. Demonstrating a link between speech and violence is a difficult problem of interpretation.
When these questions end up in the courts in the US, they apply the Brandenburg test:
- The speech must be directed to inciting or producing imminent lawless action AND
- The speech must be likely to incite or produce such action.
The Brandenburg test highlights the important questions, but it doesn’t eliminate the need for interpretation. Donald Trump’s rally prior to the Capitol Hill invasion is a contemporary parallel to Mill’s mob outside the corn dealers home.* Some see it as a clear example of incitement to violence, others not at all. A lawyer consulted asked the BBC said: “It’s quite rare that somebody can be convicted of incitement. In applying that to the president’s speech at the rally, it’s an agonisingly close case.” The President told his supporters they needed to “fight like hell,” and that they were “going to the Capitol.” But, he also told them to “peacefully and patriotically make your voices heard.” It is fiendishly difficult to link speech to violence, and where political speech is concerned, the burden of evidence is even higher.
Free speech and structural violence
The problem of interpretation deepens when the definition of violence is broadened. Violence is normally understood as a physical act, with a clear perpetrator and victim. In a famous 1969 paper, Norwegian sociologist Johan Galtung broadened the definition of violence to include avoidable differences between ‘potential’ and ‘actual‘:
Violence is here defined as the cause of the difference between the potential and the actual, between what could have been and what is. Violence is that which increases the distance between the potential and the actual, and that which impedes the decrease of this distance. Thus, if a person died from tuberculosis in the eighteenth century it would be hard to conceive of this as violence since it might have been quite unavoidable, but if he dies from it today, despite all the medical resources in the world, then violence is present according to our definition.
Correspondingly, in a society where life expectancy is twice as high in the upper as in the lower classes, violence is exercised even if there are no concrete actors one can point to directly attacking others, as when one person kills another
This violence became ‘structural’ when social institutions are behind people’s inability to meet their basic needs. Racism, when formalised into rules or institutions that restricts access to quality healthcare for marginalised groups, lowers life expectancy. Poor neighborhoods, where high pollution, perhaps from nearby chemical factories, or a lack of healthy food options, worsen the health of those who live there.
The definition includes both physical and psychological violence, and because of the omnipresence of social institutions, is at work even where there is no obvious agent.
In debates over free speech, this definition of violence is often subtly substituted for the more commonly understood version.
This makes it possible to say that speech contributes to structural violence by perpetuating unjust social institutions; speech can encourage marginalisation, and “protect the status quo, silencing marginalized voices in the name of giving more airtime to those who already have multiple podiums;” speech can deny the rights of others, creating “a hierarchy of human worth and causes serious harm to its targets.”
It can also be used to collapse any distinction between speech and violence. For Nyadol Nyuon, hate speech “negatively impacts the health of its victims, and at its worst it inspires hate crimes.” Toni Morrison agrees: “oppressive language does more than represent violence; it is violence.” Focusing on the internet, Andrew Marantz argued that “the brutality that germinates on the internet can leap into the world of flesh and blood.” Violence becomes a vague gesture to anything bad.
A wider definition of violence necessarily leads to policing more types of speech. As this opinion piece published following the Capitol Hill invasion argues, harmful speech goes beyond incitement to violence. The soapbox outside the corn dealer’s house is now joined by my family friend’s anti-vax posts.
I am not denying that speech can harm. Words can break a person’s spirit clean in two. They can be malicious and malevolent, vicious and venomous, even evil. Language works through speeches, conversations, posters, overheard gossip, text messages, television programs, books, even TikTok. I have difficulty imagining a reaction language cannot elicit or a medium it does not work through.
I am saying that applying this to freedom of speech makes the problem of interpretation harder. Violence which is everywhere, is nowhere in particular. Structural violence rests on a series of value judgements – which categories make up potential and actual, how to measure the difference between them, the causal link, the signs by which we know violence has occurred – that make it precarious and contestable.
Even Johan Galtung agreed:
The meaning of ‘potential realizations’ is highly problematic, especially when we move from somatic aspects of human life, where consensus is more readily obtained, to mental aspects. Our guide here would probably often have to be whether the value to be realized is fairly consensual or not, although this is by no means satisfactory.
“Fairly consensual” is a bad standard for policing freedom of speech.
Why more interpretation is a problem
The right to free speech is not absolute. It is always in tension with other rights. My right to free expression does not give me permission to go into someone’s home and read aloud from my favorite book. It violates their right to privacy – their right to life if I choose Being and Time.
The uncomfortable overlaps between our rights and our values requires constant negotiation, interpretation, and compromise – what Isaiah Berlin in Two Concepts of Liberty calls “haggling.”
Haggling, as anyone who has done it knows, requires speaking, usually in a raised voice. Free speech is protected because we will not agree. To make it contingent on anything except a minimum of principles is absurd and dangerous.
If this principle is insufficient, remember that more interpretation means more interpreters. Do we want organizations who sell soap or sugar water making value judgements about violence, harm, and speech. Where interpretations replace principals, the views of the most powerful dominate. Organisation’s like Facebook and Twitter already possess enormous power without granting them even wider remits for interpretation. Where these organisation are ambivalent, the dynamics of controversy mean the loudest and most invested voices will dominate – precisely the people least likely to be impartial. Passionate voices are vital for healthy politics, but they should not determine who gets to speak.
Demanding greater interpretation is a tactical blunder for progressives. The forces of history tend not to look kindly on left-wing causes. It was not so long ago that socialist ideas were banned, blocked, and frozen out because they were “violent” or “dangerous.”
Those who defend free speech are sometimes called absolutists – presumably blind to the irony – as if we defend it from a lack of imagination or intelligence. The charge insinuates a fear of ambiguity. Quite the opposite. A black and white stance on freedom of speech begins with ambiguity, and sets out to protect the conditions for it to continue.
There is an incredible amount of suffering in the world, and our social institutions are often to blame. But, free speech laws are not the place to solve it.
*A reference to England’s corn laws, which gave birth to The Economist as well as free speech thought experiments
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