The Farce of Free Speech Absolutism:
The words, “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered,” seem like they could be attributed to virtually any mainstream conservative today as the stalwart defenders of “free speech absolutism.” Perhaps counterintuitively, the thinker who wrote those words was a far cry from a conservative and, in fact, mocked the Conservative Party in England “as being by the law of their existence the stupidest party.” The opening quote was drawn from John Stuart Mill’s On Liberty, in which he defends individual liberty as a means to moral progress and human advancement. Modern conservatives thus find themselves in an awkward position, vigorously defending the arguments formulated yesteryear by explicitly anti-conservative liberals. At the same time, the liberal left is becoming increasingly intolerant and censorious of conservative and right-wing voices in the public square. As I hope to demonstrate over the course of this essay, this dilemma traces back to John Stuart Mill, his intellectual legacy, and a profound naivety on the part of self-proclaimed conservatives.
In On Liberty, originally published in 1859, Mill defends the idea that individual liberty—an essential good in any progressive society—can only be justly curtailed if used to enact harm. Likewise, the only limitation on speech and expression Mill acknowledges as legitimate is the incitement of violence; in this way, he was an early defender of what has come to be known in American jurisprudence as the “clear and present danger” criterion. Mill outlines a vision of society in which all questions are open questions and in which truth is discovered as different perspectives collide in an open, viewpoint-neutral “marketplace of ideas.” That which most gravely threatens this free “marketplace of ideas” is what Mill witheringly calls the “despotism of custom”—by which he refers to the unexamined public norms and customs that enable citizens to participate in a shared way of life. In Mill’s view, genuine freedom would require dismantling old prejudices that implied judgments and rendered certain questions settled, stagnating moral and intellectual progress. If necessary, therefore, the state must actively use the power of the law to protect creative expressions of individuality from the stultifying influence of social expectation: “there needs [to be] protection… against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compels all characters to fashion themselves upon the model of its own.” Here, Mill justifies a concentration of state power in the direction of forcing people to accept liberal freedom. According to Mill, custom must be overruled, so those who seek to live according to personal choices in the absence of social norms are at the greatest liberty to do so.
Throughout its intellectual history, a handy tactic used by liberalism has been framing issues in terms of rigid dichotomies: we can either have freedom or control, free speech or censorship, an open society, or a closed society. In truth, the issue of free speech is far more complicated. The deeper question concerns the proper limits and scope of free speech, not whether we will accept it in the first place. John Stuart Mill and his intellectual successors envisioned an absolute freedom of speech that would confer equal merit to all thoughts and ideas. Nevertheless, like any marketplace, the “marketplace of ideas” must have some structure and limits lest it implodes. The segment of Mill’s argument in which he criticizes the “despotism of custom” as an obstacle to freedom and progress signals toward this truth. Where everything is permitted, it is vital to forbid the forbidders and to harshly judge the harsh judge. Hence, in a liberal society, no individual is subject to more intolerance, censorship, and denigration than the non-liberal. The “marketplace of ideas” is incapable of tolerating the individual who recognizes objective values, sees some choices as superior to others, and some lifestyles to be better than others. Such an individual necessarily cannot participate in the “marketplace of ideas” since they do not concede that all questions are open to debate or accord equal worth to all viewpoints, thus rejecting the foundations of the experimental, skeptical, liberal society ideated by Mill and others. Indeed, in our “tolerant” and “progressive” age, we hardly live in a society without limits or boundaries; the difference is that those who patrol society’s boundaries also happen to be those who claim there are, or ought to be, no such boundaries in the first place.
In his indispensable essay “The Open Society and Its Fallacies,” 20th-century conservative political philosopher Willmoore Kendall identifies the kernel from which liberalism’s censorious tendencies grow: “The proposition that all opinions are equally—and hence infinitely—valuable, said to be the unavoidable inference from the proposition that all opinions are equal, is only one—and perhaps the less likely—of two possible inferences, the other being: all opinions are equally—and hence infinitely—without value, so what difference does it make if one, particularly one not our own, gets suppressed?” In the end, freedom of speech can never be completely neutral and tolerate all dissenting viewpoints. For, free speech always rests on a bedrock of public consensus: if two people are to engage civilly with one another, they must agree at a minimum on the assumption that the topic in question is one about which they can reasonably disagree. Without a common framework within which speech takes place, political disagreement degenerates into factionalism and violence. This is yet another problem with the liberal conception of absolute free speech: in the words of Kendall, a boundless “marketplace of ideas” leads inevitably to the “progressive breakdown of those common premises upon which alone a society can conduct its affairs by discussion, and so into the abandonment of the discussion process and the arbitrament of public questions by violence and civil war.” In an age where Americans cannot agree on even the most rudimentary facts about their identity and history, it is no wonder that political violence and rioting have increased so dramatically—we are suffering the practical consequences of a purely theoretical free speech.