Current interpretations of the First Amendment may sometimes serve as a bulwark for cancel culture, not a remedy.
Do you like liberty? Might you be interested in a book that promises, as Jordi Pujol’s The Collapse of Freedom of Expression’s subtitle does, to explain “the ancient roots of modern liberty”? Keep looking. Pujol’s book delivers a polemic against liberalism in favor of internet regulation and censorship, with little in the way of recovering ancient liberty.
Jordi Pujol, a media law and ethics professor, compares liberalism’s freedom of expression to a rickety, misbegotten building resting on top of the rock-solid foundation of ancient and medieval liberty. Liberalism has failed to inspire the laws, the judicial rulings, the mores and manners, and, most importantly for Pujol, the industry regulations that truly protect human dignity and the sacred. John Milton, John Locke, and John Stuart Mill are the chief architects; each contributing cornerstones to this crumbling construction fit only for demolition. The American experiment is no exception, but the rule. Separation of church and state is the chief culprit. The liberal state severed itself from being guided by the sacred, which is the real foundation for human dignity. Without this connection to the sacred, the liberal state is morally neutral and indifferent to the truth of any speech and so leads to the “toleration of evil and error.” Free speech protects transgressors within the marketplace of ideas and leaves victims unprotected against the objective harms to human dignity that abusive speech causes. These adverse outcomes are magnified on social media platforms where bullies and trolls roam free. Thus, classical liberalism is to blame for most of the bad experiences anyone has ever had online.
Pujol’s book is one of the latest entries in the fast-growing field of post-liberal and Catholic integralist studies. The book is thirsty to be counted on the side of
Adrian Vermeule the angels. To some extent, free speech is just another angle or MacGuffin by which to reach the conclusion that “Hey, ho, liberalism has got to go.” Of course, arguments for why liberalism failed are regressed further into an indictment against modernity. The book abounds in calls to return to the sturdy ancient and medieval foundations of natural law and the common good that will truly support human flourishing.
Pujol makes following natural law seem easy. Applying the principle “do good and avoid evil” to varied circumstances is as simple as embracing “common sense” in order “to see and distinguish what is true and grasp what is just.” There is no acknowledgment that practical wisdom is hard. Natural law is not a cure-all balm for what ails us moderns. Nor is pursuing the common good achieved by the sprinkling of pixie dust. If ancient and medieval thinkers teach anything, they advise us that character formation is demanding and justice is (in every actual political order) partial—at best. Consequently, they spent a lot of time reflecting on how to cultivate virtue in citizens and statesmen. That reflection is mostly absent in Pujol’s book.
Oddly enough, there is not much inspiration drawn from ancient and medieval thinkers. Pujol frequently asserts that he is “following” Aristotle or Thomas Aquinas, but there is little evidence of solicitous engagement with their thought. To be sure, there are some well-placed quotes, but his concepts and terms do not seem drawn from these deep wells. For example, Pujol coins a new principle called “self-limitation”—an inelegant neologism—that he equates with the classical virtue moderation. Self-limitation is self-censorship. Choose not to speak or write out of your “respect for the other” and “the subordination of particular interests to universal moral criteria for the sake of the common good.” This is not moderation but some sort of twice-reheated modern mash. Moderation is the inward freedom the moderate person possesses having fashioned her desires in accord with reason. Pujol invokes a classical virtue to give some patina to his concern for improving the quality of speech online.
One more short example: Pujol claims that liberalism requires strict neutrality toward speech and so tolerates all speech, even harmful speech and false speech. The liberal state protects the speech rights of transgressors and dismisses their victims’ sufferings as mere hurt feelings. Relying on John L. Austin and his theory of speech acts, Pujol argues that words should be understood as having the force of actions that cause objective harm in recipients. In an effort to clothe Austin’s theory with a more ancient pedigree, Pujol claims that “[m]any authors” believe that the roots of Austin’s theory of speech acts can be traced to Aristotle. The nearest footnote only mentions one source. This is misleading scholarship. Pujol beefs up the passage with a quote from Aristotle in an effort to show the compatibility of Austin’s theory of speech acts with Aristotle’s writings on art and history. My point is not that Pujol is incorrect, but rather that he has not troubled himself to make an argument.
Looking past the flag-waving for the ancients and medievals, Pujol’s solutions are conventional justifications for more international bureaucracy, more inspired by Jürgen Habermas than, say, Thomas Aquinas. Much of this book may be understood as an effort to demonstrate the compatibility of Catholic social teaching with Habermas’s cosmopolitanism. Pujol’s political project seems to be to encourage Catholics to align themselves with Habermas’s political vision, which is supposedly superior to liberalism because it better protects religious minorities.
According to Pujol, self-regulation of social media companies is insufficient to provide remedies against abuses of speech such as hate speech, trolling, bullying, blasphemy, obscenities, pornography, misinformation, foreign election interference, and the flooding of social media platforms to boost disinformation. While Pujol concedes that it is not desirable for the state to regulate ideas, first, it “must defend the common social good.” The common social good here is understood to be “conditions that allow for a rational public debate.” (These conditions are not informed by a nation’s history, traditions, or majoritarian preferences.)
Second, ordinary people are not equipped to make judgments when surrounded by so much untrustworthy information and opinions. Social media platforms must be made to understand themselves as public “information fiduciaries.” Pujol is heartened by Germany’s laws that make tech companies legally liable for spreading disinformation online as a baby step in the right direction. Tech companies only respond to the threat of litigation and costly fines. (As we have learned from the Twitter files, social media platforms also respond with equanimity to government requests.) What is needed are “global regulations” on tech companies. This is not your grandparents’ Catholic social teaching with its old-fashioned emphasis on subsidiarity.
How will these regulations be enforced? This is where Pujol is his most ambitious. Nation-states, he asserts more than argues, are not up to the task of protecting individual rights. We should adopt “a new paradigm of global law” in which the international order is transitioned from a society of nation-states to “a global community that places the person at the center.” Depreciated nation-states will survive, but under the jurisdiction of a “global arbitration body” whose judges will, over time, “integrate and reconcile the different legal systems.” (Only James Bond villains and academics speak with unbridled enthusiasm for global governance.) Apparently, the return to natural law looks an awful lot like adopting the General Data Protection Regulation (GDPR).
When Habermas’ name is invoked, it is often in conjunction with Joseph Ratzinger (Pope Benedict XVI). Because they once shared a debate stage and shared some common misgivings about the Enlightenment that denied the religious foundations that inform liberalism. Little mention is made of any more substantive disagreements between the pope and the secular atheist. Habermas concedes that Christian moral reasoning and doctrine (that human beings are made in the image of God) undergird liberalism and the doctrine of human rights. Habermas’ admission isn’t the big win for Christianity that Pujol seems to think it is. He basically wants to keep religious thought around for the sake of mining it for moral insights that can be secularized.
Habermas is more honored by the pervasiveness of his ideas and the reflexiveness with which Pujol speaks of the “public sphere.” He employs all the conventional Habermasan tropes about how, given the interconnection of economics and flow of information across arbitrary borders, the territorial state is incapable of addressing global problems, such as climate change, the internet, or [fill in the blank with your top global problem] and is irrevocably suspect as a vehicle of ethno-nationalism. Pujol does not explain these ideas; instead, he assumes them as part of the obvious building blocks of the future “global community.” The public sphere is not a place, but an abstract mediating realm between society and state where public opinion is formed. According to Habermas, the public sphere, while never perfectly realized, depends on participation and quality speech. You might think of the public sphere like the Earth in a superhero movie—it is constantly endangered by supervillains. The supervillains here are propaganda, algorithms, AI, trolls, misinformation, hate speech, obscenity, and blasphemy that undermine the quality of speech and, therefore, distort and discourage participation. In broad strokes, Pujol’s critique of liberalism tracks with Habermas’ teachings.
Pujol does not want to leave any doubt that the American political tradition is fatally flawed by liberalism. Augustine is more generous to Roman pagans in The City of God than Pujol is to America’s Founders. The Declaration of Independence is ultimately a Lockean document; despite its references to “the Creator” and “Nature’s God,” he detects “the strong desire of modern authors to erase any prior influence or tradition.” He concedes that the Declaration and the Bill of Rights have some merit in recognizing that human beings have inherent rights sustained on the fumes of an older and richer natural law tradition. Nevertheless, American legal, political, and social history, according to Pujol, has been a long march of liberalism that has broken “the moral bond that accompanied the exercise of freedom.” The Warren and Burger courts and the (mid-twentieth century) ACLU are especially to blame. Rulings such as Brandenburg and Villiage of Skokie have reduced free speech to a license to offend and an invitation to transgression and the celebration of violence.
Did the mid-twentieth century Supreme Court use the Free Speech Clause like a weed wacker to void myriad state laws? It sure did. But Pujol’s critique of American liberalism seems stuck in the mid-twentieth century. Moreover, it is an exaggerated critique of the American political tradition meant to discredit it.
In contrast to Pujol, there is a healthy tradition of American thinkers, such as Orestes Brownson and John Courtney Murray, taking the Founders to task for using Lockean building materials in the construction of the American political order. The doctrine of the sovereign individual invites moral relativism, reduces human relationships to contracts based on mutual self-interest, and offers an anemic conception of the human good. Moreover, being an autonomous individual is rather lonely and alienating. Despite this grim critique, for Brownson and Murray, the American Founders “built better than they knew.” The Founders “built not as theorists, but as statesmen making prudential adjustments to their theory to accommodate the world—the civilization—they had been given.”
The American proposition is already indebted to older traditions of natural law and Christian thought than the self-consciously Lockean language of the Founders reveals. As Peter Augustine Lawler and Richard Reinsch II elaborate in A Constitution in Full, the Constitution embodies “an accidental American Thomism” that affirms the transcendent worth and dignity of persons who are open to knowing the truth. Constitutional limits on the government’s power exist not for the sake of enhancing the rational calculation of autonomous individuals, but for particular persons in families, religious communities, and other associations to pursue goods in common. Free speech, religious liberty, and freedom of assembly are closely related because the ideas that animate how people live together are not merely private or accidental (as Locke would have it) but meant to be shared and realized with others.