The problems with free speech absolutism

These days we seem to see a proliferation of hate speech, the tone being set by the petulant man-child who is currently president of the US, who lashes out at everyone he doesn’t like or who opposes him on anything, using the most incendiary rhetoric. This has given encouragement to all the bigots who see his words and actions as giving them a license to let loose too. The ghastly video below, seemingly cribbed from a scene in the film Kingsman: The Secret Service that shows Trump murdering various journalists, media organizations, and political rivals, was shown at a conference of Trump’s supporters at the Trump National Doral Miami resort and is an example of what is being supported and promoted by those at the very top. (Violence advisory.)

The White House has now distanced itself from this video (though Trump himself has not personally condemned it even though he has found time to tweet about all manner of other things) but the very fact that Trump supporters showed it at a conference held at a Trump resort is evidence of this sense of liberation now felt some for this kind of speech. This has raised troubling questions about whether there should be more limits to speech than those currently in existence. There are always limits on speech. The key questions are what those limits should be and who has the right to set them.

The radio program On the Media had a fascinating in-depth look at the history of the free speech movement and how far we can go with free speech absolutism. Host Brooke Gladstone’s guest on the show, New Yorker staff writer Andrew Marantz, argues that there is an inherent conflict between the protections of the First Amendment that protects the rights of the speaker, with the 14th Amendment that protects the rights of everyone to full participation in society and for whom certain types of speech restricts that participation.

The full show lasts for 52 minutes. If you do not want to commit to the whole thing, there are three different segments that can be listened to separately.

Part 1:

Back in the 1980s, analytic philosopher Richard Rorty described the concept of “contingency,” which argues that there’s no predetermined arc to our systems and processes: the arc, Rorty said, is made by people. So the idea that our society will move ever more towards enlightenment and rationality? According to Rorty, that idea is flawed, because it’s people who ultimately determine what will become of our ideas and our institutions.

So what does all this mean for one of our most hallowed rights, the first amendment? In his new book Antisocial, New Yorker writer Andrew Marantz argues that the first amendment — and, by extension, the American conversation — has been hijacked. In this segment, Marantz and Brooke lay out the contours of the problem, and how contingency has led to a discourse gone haywire.

Part 2:

Our understanding of “free speech,” as UC Berkeley law professor john powell sees it, is akin to our understanding of gravity. “We all think we know what it is,” he tells us. “but if you talk to a serious astrophysicist, they would say we have no idea what gravity is, why it works, how it works.” It turns out, what comes up doesn’t always come down, and what seems clear in the Constitution is often anything but.

In this second part of our hour this week on free speech, guest host Andrew Marantz — author of the new book, Anti-Social: Online Extremists, Techno-Utopians, and the Hijacking of the American Conversation — guides us through the history of this particular freedom, from the post–Civil War Constitution, to Schenck, to Brandenburg, to Skokie, to Citizens United and, finally, to Charlottesville.

Part 3:

At the beginning of this hour, guest host Andrew Marantz, author of Antisocial, talked about the late analytic philosopher Richard Rorty, who argued that the future won’t be determined by a set of predetermined factors, but by a set of unpredictable contingencies. In the conclusion to our hour on free speech, Andrew and Brooke talk about the limits of legal solutions to free speech run amok, and look to a 1996 speculative essay by Rorty for inspiration about how we might get out of the current morass. In his essay, “Looking Backwards From the Year 2096,” Rorty wrote about a Dark Age spanning from 2014 to 2044, from which his fictional America recovers by foregrounding principles of fraternity and unselfishness rather than rights. Might our American civilization do the same?


  1. GerrardOfTitanServer says

    My problem with hate speech can be summed up as this: In France, it’s illegal to advocate for BDS, boycotts of Israeli products, or products from Israeli occupied territories, because the French courts have determined that BDS is hate speech.

    This is why hate speech should be legal -- because I don’t trust any government agency or court to accurately distinguish speech that should be labeled as “illegal hate speech” vs speech that should be protected.

    Insert obligatory reference to the best defense of this sort of free speech absolutism (which isn’t really absolutism at all), which happens to be by Christopher Hitchens.

    I’m also with the argument that Hitchens makes in the video; I believe that hate speech laws are rarely effective, and I believe that hate speech laws protect promoters of hate more often than they protect the people who are really deserving of protection from hate.

    If anyone wants to cite me evidence that hate speech laws are effective at curbing hate, I’d love to see it, but I believe that such evidence does not exist.

  2. mnb0 says

    @1 Gerrard: your cure is worse than the disease. It means giving mobs a free hand to harrass vulnerable individuals.

  3. GerrardOfTitanServer says

    To mnb0
    And again, that’s just a naked assertion. You can assert that such laws do lots of good without evidence, but I won’t accept such a claim without evidence to back it up. And also, I repeat myself when I say that hate speech laws seem to be used more often to protect promoters of hate than they are used to protect people who are deserving of protection. To paraphrase Christopher Hitchens, if you want to find the primary justification for slavery, for LGBTQ bigotry, for the subjection of women as chattel, etc., you need only look for the books that are front and center in every church, synagogue, and mosque. Not only do I suspect that the hate speech laws are ineffective based on the flimsy evidence available to me, I believe that the hate speech laws are counter-productive because they’re more useful to hateful speakers than they are to targets of hate.

  4. deepak shetty says


    This is why hate speech should be legal

    So because the law isnt perfect , we shouldn’t have it ? Any other laws you want to apply this reasoning to?

    Im curious though -- There are a whole bunch of libertarians who champion absolute free speech but seem to like the existence of Slander and Libel laws(A certain Michael Shermer comes to mind) -- Are you in favor or against such laws? If you are in favor how do you square that with support for hate speech ? If you are against such laws too , you are saying that if say a news organization could publicly accuse you of running a pedophile pizza ring , you have no recourse ?

  5. GerrardOfTitanServer says

    So because the law isnt perfect , we shouldn’t have it ?

    This is not a serious or honest representation of the arguments that I just made. I encourage you to read what I wrote again. Or maybe read it for the first time. It was a few short posts. It shouldn’t be that hard.

    Here’s a hint: I said that I think the law is counterproductive. I think it’s worse than nothing. That’s very different from “[good but not] perfect”, as you wrote.

    Im curious though — There are a whole bunch of libertarians who champion absolute free speech but seem to like the existence of Slander and Libel laws(A certain Michael Shermer comes to mind) — Are you in favor or against such laws? If you are in favor how do you square that with support for hate speech ? If you are against such laws too , you are saying that if say a news organization could publicly accuse you of running a pedophile pizza ring , you have no recourse ?

    I believe that a workable bright line can be made for defamation. At least, good enough. There are clear delineations that can be be made in a legal jurisprudence sense.

    Second, no “worthwhile” speech is defamation, but there’s plenty of worthwhile speech that is hate speech, i.e. BDS in France.

    Third, I don’t think that defamation laws function in practice primarily to protect the speakers of lies, but I do tend to think that hate speech laws more often protect the speakers of hate than the targets of hate because the biggest source of hatred in our world are the three Abrahamic religions, and they are one of the major benefactors of hate speech laws. Christopher Hitchens makes this point forcefully, and I believe that he is correct. Christopher Hitchens could plausibly get in trouble for the speech that he made in that video, but, for example, none of the Muslim protestors who held up signs saying “behead those who insult Islam” are going to get into trouble, and I think that’s perverse.

    Fourth, at least for US-style defamation law -- unlike recent English defamation law -- I don’t regularly see defamation law being (mis)used to silence speech that I think should be protected, unlike hate speech laws and BDS.

    Fifth, I don’t think that people should have a right to dignity in the sense that they should be free from ridicule. I think that ridicule and disdain are effective and sometimes useful and good weapons against bad ideas, and sometimes it is useful or necessary to ridicule certain groups in society in order to make a political point. Of course, I think that such things are more often “punching up” instead of “punching down”, aka I think we should ridicule Catholics and especially the Roman Catholic Church for being an international child rape ring, and Catholics should not be afforded any legal protection against the ridicule, disdain, and even anger that I wish would exist against their organization and against them as persons for being Catholics because of their defense and support of that international child rape ring. Just as one example. Catholics don’t deserve legal protection of their dignity as Catholics. That’s obscene.

    In other words, I am terribly offended by the notion that anyone should be guaranteed respect and dignity from the masses according to the law. That sounds like an absolutely short-sighted and horrible thing to do because of its knock-on consequences.

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