A great deal has been said and written of late about free speech: whether it is even possible, whether it has intrinsic limits, whether it is inherently biased for or against certain groups, or whether it might be more injurious than beneficial to the well-being of a community. Some of us wonder how it came to pass that a principle as fundamental to Americans as free speech, grounded as it is in the language of the First Amendment to the U.S. Constitution as well as Article 19 of the United Nations’ Universal Declaration of Human Rights, among other places, has suddenly become so “problematic”? And on college campuses, of all places!
Perhaps it is the case that free speech is destined always to be controversial, always on the defensive, precisely because it is so rare and difficult an ideal to sustain. It is easy to approve of it in theory, but even easier to find it infuriating in practice. Free speech so often cuts against the grain. It is the rude guest at an otherwise harmonious gathering, the one who says no to niceties and conventional wisdom, asks embarrassing questions, defies etiquette, and otherwise sets the cat among the pigeons and his fellow dinner guests’ teeth on edge.
Does that tendency of free speech to be disagreeable help us account for the surprising shift in the center of gravity that we have witnessed in free-speech debates? Is it a byproduct of the “coddling of America,” this inability to tolerate hearing a view contrary to one’s own being spoken? Would the great free-speech maven of The New York Times in its heyday, Anthony Lewis, still publish a book today with a title extolling “freedom for the thought that we hate”? Would Oliver Wendell Holmes Jr. still insist that “the ultimate good desired is better reached by free trade in ideas,” because “the best test of truth is the power of the thought to get itself accepted in the competition of the market”? Or might he find himself ridiculed and deplatformed for saying so?
There is an eatery on the campus of the University of California at Berkeley called the Free Speech Movement Café, hearkening back to the 1960s, that campus’s glory days in the annals of dissent. How long will it be before that name itself—talk about commodifying your dissent!—has gone beyond being deeply ironic and becomes downright objectionable in the eyes of the rising generation?
I don’t propose to answer all of these questions. But I do have some thoughts about the most important issue, the place of free speech in our colleges and universities. I believe that some portion of our current confusion may be clarified by recurring to first principles and recovering a clearer sense of what free speech is for. For the mere declaration that we possess a certain right, a negative liberty, does not tell us anything definite about why we ought to have it or what we ought to be doing with it.
My thoughts on the subject flow from my thinking more closely about the two words free and speech—and asking exactly what it is that we mean by them. Let me start with the second one, speech.
It is here that I must regretfully express a measured but significant disagreement with the Chicago Principles, so named because they were propounded at and promulgated by the University of Chicago, under the courageous leadership of its then-president, the late Robert Zimmer. I honor Dr. Zimmer’s memory and achievement, and I think he did a great deal of good in providing a text that over seventy institutions have been able to rally around, to reassert the university’s fundamental commitment to free inquiry. And yet the Chicago Principles leave an important problem unaddressed, and they compound that problem precisely by their failure to address it.
You may recall that the document is called the “Report of the Committee on Free Expression” . . . not of “Free Speech” (or, for that matter, of “Free Inquiry” or “Freedom of Conscience”).
This is not an unimportant difference, although the text of the report also employs “speech” instead of “expression” in multiple instances, as if there were absolutely no difference between them.
The Chicago Principles are not unique in emphasizing “expression” rather than “speech.” The Woodward Report, published in December 1973 by a committee at Yale headed by the eminent historian C. Vann Woodward and still one of the best such guides to the virtues of academic freedom, also uses the same language. Its official title is the “Report of the Committee on Freedom of Expression at Yale.”
In neither of these two influential documents is attention given to any difference of meaning between “speech” and “expression.” The terms are treated as if they are completely interchangeable.
There are consequences to such semantic slippage, particularly if it is deliberate. The Chicago Principles open with a statement about how “from its very founding, the University of Chicago has dedicated itself to the preservation and celebration of the freedom of expression as an essential element of the University’s culture.” But then, as evidence of this foundational commitment, it goes on to say:
In 1902, in his address marking the University’s decennial, President William Rainey Harper declared that “the principle of complete freedom of speech on all subjects has from the beginning been regarded as fundamental in the University of Chicago” and that “this principle can neither now nor at any future time be called in question.”
Note that Harper did not refer to freedom of expression, but to freedom of speech. Did the authors of the Chicago Principles believe that Harper, who was a Baptist clergyman, would have recognized no difference between the two terms? Or did they make a silent editorial decision that the Principles would not recognize the difference between the two terms, even if Harper would almost certainly have done the opposite?
Either way, I believe they made a mistake. The ultimate justification for free speech is inseparable from the fact that that it is speech that we are allowing to be free.
By saying it this way, I mean that speech, discursive language—what the ancient Greeks called logos—has a special dignity. It is the human gift par excellence. It is the medium by which we engage in rational deliberation, the way that we work things out together, solve problems, state and apply moral principles or principles of action. It is the means by which we are able to be “political animals” in the way that Aristotle describes us—not just animals that live together, but animals that have the capacity to deliberate together on questions of the common good. Or as Aristotle himself puts it, in Book I of the Politics,
[W]hy man is a political animal in a greater measure than any bee or any gregarious animal is clear. For nature, as we declare, does nothing without purpose; and man alone of the animals possesses speech. The mere voice, it is true, can indicate pain and pleasure, and therefore is possessed by the other animals as well (for their nature has been developed so far as to have sensations of what is painful and pleasant and to indicate those sensations to one another), but speech is designed to indicate the advantageous and the harmful, and therefore also the right and the wrong; for it is the special property of man in distinction from the other animals that he alone has perception of good and bad and right and wrong and the other moral qualities, and it is partnership in these things that makes a household and a city-state.
Animals share with us a capacity for expression of pain and pleasure, but not a capacity for speaking with analytical cogency about those things, describing them with the requisite precision, making judgments of value among them, and incorporating those judgments into the life of a human community. In fact, Aristotle is saying that it is our capacity for “partnership in these things” that makes a community possible.
Speech occupies a middle ground between thought and action, a sort of buffer zone in which we can consider, together, different courses of action prior to acting upon them. The whole idea of allowing speech to be free depends upon its being securely situated in and mostly confined to this middle transitional zone. (Speech that represents a “clear and present danger” is proscribed precisely because it violates this fundamental understanding.)
We engage in this sort of provisional thinking all the time, as when we deliberate together in considering competing scenarios, whether Plan A is better than Plan B, which plan will have what consequences, and which simulation or imaginative projection is likely to provide us with a more accurate reading of future events, and thus a more effective plan of action. In a truly deliberative environment, individuals collaborate with one another in thinking through their plans, both in constructing them and then in evaluating them, implementing them, and considering together their moral implications.
Expression, however, is something distinct from speech. It is a more or less romantic term, an emotion-laden term, referring to forms of communication that may or may not be verbal, and may or may not be part of a deliberative process. Its romantic quality is reflected in the word’s etymology, deriving from the Latin exprimere, “to press out.”
Permit me to elaborate with a story that will illuminate the difference.
When I was an undergraduate, my college had the practice of inviting scholars to deliver formal lectures to the entire student body on Friday nights. Coming at the end of the academic week, the lectures were required occasions that were both academic and social in character. One dressed up. After the lecture, the audience members who were eager to question the lecturer would assemble in a separate hall, and the conversation would continue, often long into the night. A delightful custom, when it was working as it should.
It didn’t always do that. One Friday night I found myself in the after-audience, listening to a conversation that, little by little, got itself stuck on different understandings of certain ineffably abstract concepts. The conversation became tense and exasperating, like listening to variations on a snowbound car spinning its wheels in vain. Suddenly, a young woman behind me, a fellow student, stood up and let out a loud, long, intense, wailing scream and, having delivered her sonic judgment on the entire proceedings, turned on her heels and walked out of the room. Her nonverbal remonstrance had shocked everyone in the room, but she made a point. “Well,” commented the waggish senior sitting to my left. “Freedom of expression.”
As this example suggests, expressive liberty tends to be a one-way thing, a monologue, a cry of the heart, like the Sammy Davis Jr. song “I Gotta Be Me,” not a contribution to collective deliberation about truth. We sit back and listen to the monologue, like moviegoers in a darkened theater. We are spectators. The experience can be enthralling, moving, powerful, passionate. Shocking, even. If it is a great work of art we are confronted with, we might be uplifted, or feel our spirit crushed, by what we see, and perhaps our thinking about some social issue or historical person is changed. If it is inferior art, like our best friend’s little sister’s earnest but awful poetry, we try to be generous, and we accord it the respect due to another person’s inmost expression, rather than giving it the hook right away on aesthetic grounds.
But there is no room for us to answer it, or offer an alternative view. Expression qua expression is all about “my voice,” “my truth,” “my narrative”—and it must be heard! And in some sense, it must be deferred to. Think of that screaming girl: what could anyone have said to her in criticism of her voice, her truth, honestly expressed? Well, we could have criticized her for failing to use words, for failing to participate in a discussion in the customary manner. But if I cannot detach her words and ideas from her “truth,” how can I criticize her words usefully, without seeming to reject her, as a person, altogether? Her position is argument-proof. Trouble is, no one will ever really know what her point actually was.
Freedom of expression, in this sense, is almost certainly not what James Madison had in mind in 1789, nor what William Rainey Harper had in mind at the University of Chicago in 1902. That doesn’t settle the matter for us today, of course. But it serves as an indication that we are now embarked on a very different path than the one they set us upon. And a part of the quandary in which we find ourselves has arisen precisely because we have confused speech and expression.
One could write an interesting history of how this blurring came about in our general culture, how two things that were distinct a mere century ago have become so conjoined in our thinking as to be indistinguishable. I think we can say with some confidence that the twentieth-century controversies over obscenity laws, prompted by the publication of such books as Lady Chatterley’s Lover and Ulysses and Fanny Hill, had much to do with the expansion of the category of speech to include the protection of expression. Rochelle Gurstein’s 1996 book The Repeal of Reticence is a masterly historical treatment of that process, by which intellectuals threw off the older idea that the traditional canons of art and literature were instruments of intellectual and moral refinement and embraced the notion that the transgressive writings of the Marquis de Sade or the shocking photographs of Robert Mapplethorpe were expressions of authentic perspectives and equally deserving of our attention. Perhaps even more deserving, since they had been suppressed for so long by our society’s moralistic preceptors.
But the message being conveyed by some favored forms of “expression” can be hard to hear, even when it is very loud. And in terms of discernible meaning that can be articulated in definite terms, “expression” is sometimes downright mute.
The members of the American Nazi Party who sought to march in 1978 through Skokie, Illinois, a community in which one in six residents was a Holocaust survivor—were they intending to engage in speech? Exactly what would they have been saying? Yes, we know generally what they would be saying, but can what they wanted to say be expressed in terms that allow for a counterargument in speech to be made?
What about a gesture like flag-burning? Leave aside what the courts say. Is it speech or expression? If such things are a form of speech, shouldn’t we be able to identify what they were saying? Can we?
Or to bring the matter up to date, do we really know what “taking a knee” means, in anything other than the broadest sense? Ask twenty different people what “taking a knee” means. You will probably get twenty different answers.
But often the point of using an expressive gesture or image rather than a verbal declaration is precisely the imprecision that expressive symbolism offers. Words can generally be answered and contested and clarified and amended, in dialogue and conversation and debate with others using words. But the gesture has a powerful finality about it, an unanswerable quality—or it can only be answered by another unanswerable gesture: you insult me, and I insult you back; you block me, and I block you. This is the kind of gestural misanthropy in which our era increasingly specializes. It is not a good model for democratic deliberation.
Much of the armory of present-day political protest is about various forms of nonnegotiable expression—taped-up mouths, armies of Atwood-inspired handmaids, staged screaming, audiences that wheel around and turn their backs on invited speakers or drown them out with chants, vandals who throw tomato soup at Van Gogh paintings, madmen who glue themselves to valuable objects—gestures and imagery treated as if they were speech. The courts, including the U.S. Supreme Court, have been instrumental in furthering this trend. I could multiply examples or emphasize that this is a practice of all political parties and persuasions, but the point is that we have come to accept passively the notion that these expressive acts are equivalent to more conventional forms of speech.
But in fact these examples represent the opposite of speech. Rightly understood, speech, logos, always entails the possibility of an answer, of interlocution, of dialogue, of engagement, of argument—in short, of talking back. Instead of offering the opportunity for argument and persuasion, such examples seek to foreclose the possibility of counterargument and refutation.
When we equate free speech with free expression, we deny or diminish the unique property of speech: as the medium of deliberation, as that middle ground between thought and action, and as the instrument that enables us, together, to seek and test and validate the truth. In addition, we miss the fact that “free speech” entails obedience to a whole set of procedural norms, which are the necessary ground of that freedom. This adherence to some such norms may be desirable for our society as a whole, and that is a possibility that deserves a separate examination. But my point here is a more narrow one: that free speech and the norms it entails are especially necessary in an academic culture, a culture whose reason for being is unimaginable apart from such norms.
Those norms include many of the things that go by the term civility. They begin with respect for those to whom we speak, a respect that acknowledges their presence before us and their shared membership in our community, precisely because the purpose of our speech is honest persuasion and, ultimately, truth-seeking that benefits the whole community—since as an academic community, we are a community consecrated to the pursuit of truth.
The confusion also works in the other direction. Just as actions have become interchangeable with words, so words have become regarded as a form of action. This can take the narcissistic form of tweeting out a virtue-signaling message, or even launching a social-media campaign, as a substitute for actually doing something concrete. Ten years ago, when 276 Nigerian Christian girls were kidnapped by the Islamic militant group Boko Haram, there was a huge social-media campaign, joined by the First Lady of the United States, repeating the slogan #BringBackOurGirls. But little else was done, and today nearly half of the girls remain unaccounted for.
But fecklessness is not the only ill consequence of confusing words with actions. During the famous 2017 incident at Middlebury College, when violent students (and radical outsiders) rejected the idea that the distinguished aei sociologist Charles Murray could even be allowed to speak on campus, they resorted to chanting that “Words are violence,” echoing the 1993 Nobel Prize address of the novelist Toni Morrison. To be scrupulously fair, what Morrison actually said was “Oppressive language does more than represent violence. It is violence.” The protestors’ simplification seems a crude but honest extrapolation from her words.
In other words, speech can be a form of violence, and violence—at Middlebury, in the streets of Berkeley, in Baltimore and Portland and Seattle and Charlottesville and a dozen other places—can be a form of speech.
What we have lost in this formulation, which can be expanded to include any unwelcome words in the category of violence, is a recognition that the realm of speech—properly understood and properly cared for—serves a civilized society, and an academic community in particular, as an essential buffer zone between thought and action, a holding pen or neutral place where we can hold our disparate views out before ourselves in public and consider them together. It is the realm of civility, which is something entirely distinct from niceness.
Yes, there are exceptions to this, in the form of so-called fighting words or the proverbial shouts of “fire” in a crowded theater. Speech can go too far. There also are a few categories of speech that are rightly called “speech acts,” such as wedding vows. But these exceptions do not invalidate the rule. To make speech into action and action into speech is to negate the value of speech entirely. Such a conflation will ultimately leave the outcome of any conflict in the hands of those with the fewest inhibitions about employing violence, manipulation, and bullying threats to greatest effect.
There has been much talk of “safe spaces” in the contemporary academy, but words are our principal safe space, especially in the academy, since they are where the most dangerous ideas can be explored safely, as in nuclear containment units, without immediate consequence. Hence the Woodward Report’s famous characterization of the academy as the place defending “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” We cannot have that, the academy cannot perform this dangerous function, if we do not recognize and affirm the special status of words. And if you haven’t noticed, we really have not been performing that function very well in recent years.
That is not to deny the fact that words can cause pain and damage. Toni Morrison was not wrong about that, and we should not strive to test our commitment to free speech by stocking our campus speaking dockets with the most obnoxious characters on earth, who will flay and bludgeon the sensibilities of their listeners rather than further the process of rational public debate.
But there cannot be a free society without citizens who are sufficiently resilient to hear and understand and give respectful attention to views, put forward in speech rather than expressive gestures or slogans, that are seriously at odds with their own. This is the constraint imposed by canons of fundamental civility that we all accept in order to be otherwise “free.”
One of the other slogans mouthed by the mob that drove Charles Murray off the Middlebury campus, and seriously injured his host Allison Stanger, was (I am quoting) “Fuck rhetorical resilience.” This was a response to a sensible contention by the college’s president, Laurie L. Patton, that developing “rhetorical resilience” is an essential element in a college education. She was right. But the students employing that slogan were having none of it, and they used their expressive freedom, rather than genuine speech, to make their point, much as an infant makes his point by overturning his bowl of oatmeal rather than offering a detailed explanation. Their juvenile resort to the F-bomb, which is by now as shocking as dishwater, was a way of saying “Don’t bother us with your arguments, there is nothing to discuss. We already know the truth.” Ubiquitous use of the F-bomb is the trademark of individuals who, lacking the capacity to explain their views to others, know only how to “press them out.”
Yes, from a procedural standpoint, freedom of speech is a negative liberty, in the sense that, as in the First Amendment, it bars governing institutions from presuming to be censors acting in the name of some putative higher set of values. It does not seek to impose that higher set of values.
But in the academic setting, the limitations of understanding free speech as merely an expressive liberty, a Hyde Park Speakers’ Corner for the voluble, become especially clear. Freedom of speech must be seen as a truth-seeking tool, whose existence points toward a larger social purpose by enabling the search for truth. Indeed, every cogent defense of free speech, from John Milton to John Stuart Mill to Zechariah Chafee on down to the present, finally ends up defending it in such terms: as a means of discovering and testing the truth.
Free speech is an individual right that points toward a social end, and we best serve the social end by defending the individual right with vigor and conscientiousness. Even something so fundamental as allowing opposing positions each to have their moment to speak becomes an empty procedural norm unless there is an underlying commitment to the pursuit of truth and to the possibility, however slim, that the lone obnoxious dissenter in the room might be the one person who has it right.
I should add that nothing I am saying here about the importance of protecting free speech should be taken as advocating for restrictions on free expression. I am simply arguing that the two things ought to be distinguished, as we have increasingly failed to do; that the cases to be made for them are different; and that when it comes to the academy, it is speech rather than expression that stands most urgently in need of our defense.
Furthermore, it is not enough to affirm free speech on the grounds of feeble and genteel relativism: that we live together in a world in which the truth cannot be known, so everyone ought to have the expressive liberty of sounding off. On the contrary, free speech is one of our most precious tools for seeking truth. We need free speech because there are truths out there to be found—and because no one of us alone is ever going to find them all or come independently into complete possession of them. We need the refining fire of contrary opinions to purify and elevate our own necessarily incomplete assertions.
Which means that, as a truth-seeking community, we cannot allow ourselves to become reliant on the superior wisdom of censors and experts to do our job for us. That is yet another argument for free speech, and one of the most venerable. The best way of improving our own arguments is by hearing and responding to the arguments of those who disagree. John Milton’s great essay Areopagitica of 1644, one of the most important defenses of free speech ever written, makes just this assertion, composing a brief against censorship. Read his words:
I cannot praise a fugitive and cloistered virtue, unexercised and unbreathed, that never sallies out and sees her adversary but slinks out of the race, where that immortal garland is to be run for, not without dust and heat. Assuredly we bring not innocence into the world, we bring impurity much rather; that which purifies us is trial, and trial is by what is contrary.
As David Bromwich has pointed out, Milton is making a subtle theological statement here: that we do not come into the world innocent, each of us a Lockean tabula rasa, but instead our judgment is inherently tainted, our timber crooked. We cannot be relied upon to discover truth on our own, in magisterial solitude. It is only by subjecting ourselves and our opinions to the challenge of contrary opinions that we can have any confidence in what we have discovered, and can have any hope of governing ourselves justly and well.
To choose a regime of free speech, then, is to choose a regime of constant trial, in just the way Milton expressed it some four centuries ago. That is what the university should exemplify. It can be exhausting. It is not what everyone wants out of life, and in some ways it is highly unnatural.
But many fine things are unnatural: tolerance, sacrificial love, the stately beauty of a formal garden. Such is the unnatural ideal to which the university in particular ought to be consecrated. And the sustenance of that ideal is ultimately dependent on a firm commitment to the refining force of speech, that most human of capabilities. The university best serves its society by understanding the proper limits of that commitment, and by adhering to it faithfully, even fiercely, as a place for knowledge, requiring a special kind of community.
