A good many people claim to be “free speech absolutists,” but I’m not sure whether they really are. Push an absolutist hard enough with edge cases and you typically discover that they do indeed draw lines beyond which speech may not be permitted to go. (How many celebrants of free speech advocate the elimination of libel and slander laws?) But even if true absolutists exist, some of the people most often cited in support of free speech certainly were not so absolute. And there may be useful lessons for us in that.
For instance: The problem with citing John Milton’s “Areopagitica” (1644)—as David Bromwich does here, for instance—in support of freedom of speech or of the press is that immediately after making his eloquent plea for unlicensed printing, Milton adds,
I mean not tolerated popery, and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpate…that also which is impious or evil absolutely against faith or manners no law can possibly permit that intends not to unlaw itself.
Free speech, sure, but of course not for Catholics. It should go without saying that this is Milton’s own opinion.
Similarly, John Stuart Mill, so often cited as a man for our moment, says quite early in On Liberty (1859) that his argument is a culturally relative one, applicable only to societies that have developed in certain specific ways, and not to everyone within those societies. First of all, he says, “this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury.” And this principle, Mill contends, must be extended from individuals to whole societies:
For the same reason, we may leave out of consideration those backward states of society in which the race itself may be considered as in its nonage. The early difficulties in the way of spontaneous progress are so great, that there is seldom any choice of means for overcoming them; and a ruler full of the spirit of improvement is warranted in the use of any expedients that will attain an end, perhaps otherwise unattainable. Despotism is a legitimate mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one.
To the politically immature societies that are not so fortunate, Mill seems to say merely: Hard luck, chaps.
And near the end of the book, he draws yet another limit on free speech, this one employing his famous harm principle:
What I contend for is, that the inconveniences which are strictly inseparable from the unfavourable judgment of others, are the only ones to which a person should ever be subjected for that portion of his conduct and character which concerns his own good, but which does not affect the interests of others in their relations with him. Acts injurious to others require a totally different treatment. Encroachment on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury—these are fit objects of moral reprobation, and, in grave cases, of moral retribution and punishment.
The essential point to be grasped here is this: The people who claim that certain books must be banned, or voices on social media silenced, because their words are “hurtful” make precisely the argument that Mill makes here.
What lessons should we draw from this manifest lack of absolutism in free speech’s most famous advocates? Perhaps that in these debates, however, fierce they may become, there may not always be a significant difference in principles.
Here’s an illustration of that point, from a recent interview with the writer Roxane Gay:
[Interviewer Jamilah King]: Nowadays there’s something called canceled culture. Does that actually exist?
[Roxane Gay]: No, it does not. Cancel culture is this boogeyman that people have come up with to explain away bad behavior and when their faves experience consequences. I like to think of it as consequence culture, where when you make a mistake—and we all do, by the way—there should be consequences. The problem is that we haven’t figured out what consequences should be. So it’s all or nothing. Either there are no consequences, or people lose their jobs, or other sort of sweeping grand gestures that don’t actually solve the problem at hand.
Just as Mill makes an argument almost indistinguishable from that of many advocates of cancellation, so here Gay articulates the same argument that the critics of cancel culture typically make: that when people make mistakes they are not warned or even chastised but rather suffer the most extreme punishment that can be given to them. They “lose their jobs” or are in some other way…canceled. That is to say, Roxane Gay holds precisely the view held by those who decry cancel culture, except that she replaces the word “cancel” with the word “consequence.”
I believe that reflection on these examples ought to encourage us. The bug-eyed extremists will always be with us, of course, but most people involved in these conversations grasp—even when they don’t want to admit it—the idea that speech should be as free as possible without inflicting unwarranted and unjust harm on others. We may seem to be operating with irreconcilable principles, but we usually aren’t.
A recognition of this fact doesn’t solve our problems, of course. Even when our principles converge we will still often disagree about, for instance, whether actual harm is inflicted in a given case, or whether that harm is indeed unwarranted and unjust. And such disputes can be intense. But if we remember that hard cases make bad law, and that, as Aristotle said in the Nicomachean Ethics, laws will always be deficient on account of their generality and therefore require prudent interpretation, then perhaps we can lower the stakes of our disputes. Instead of digging into our trenches and staring balefully at one another across a no-man’s-land of rhetorical barbed wire and land mines, we can meet one another and reason together. We can collaborate on the quest for prudent judgment.