The Natural Law of Free Speech
With Progressives increasingly condoning censorship of conservative views as “hate speech,” conservatives are responding with an increasingly absolutist freedom of speech. Some recent essays written in reaction to the Antifa/neo-Nazi violence in Charlottesville show the appeal that the absolutist view has to conservatives: If political communities were prohibited from drawing content-based restrictions on almost any expressive activity, dissent from the dominant political and cultural orthodoxies (read: conservative views) would be protected.
To be sure, the absolutist view is rooted in the past half-century of Supreme Court jurisprudence. Even so, conservatives ought to pause before embracing it.
Free speech absolutism is, to begin with, a position that lacks a basis in the Founders’ political philosophy, in the Free Speech Clause’s original public meaning, or in the reality that only a people capable of controlling their passions are capable of preserving self-government. It surrenders to moral nihilism the ability to see principled distinctions between the speech that can harm the civic virtue required for republican government and the speech critical to republican government.
The Right, rather than point out absolutism’s lack of support in our Founding or in the requirements of self-government, seems to find it an alluring posture given dominant cultural forces’ militant hostility to conservative views. Fear of drawing principled distinctions, however, is not a conservative tenet. Conservatives interested in conserving both the Constitution and the conception of liberty with which that document is imbued have good reason to reconsider an absolutist freedom of speech.
At the Founding, as I have argued in National Affairs and Public Discourse—and many judges and scholars, including Justice Samuel Alito and Judge Robert Bork, have expressed similar views—the freedom of speech was understood to facilitate truth-seeking on matters of public concern for the benefit of self-government. While some who argue as these conservatives do will want to dispute what constitutes speech on a matter of public concern, speech lacking in social value, including seditious libel, was often restricted if not prohibited in the United States.
The Founding generation’s willingness to curb socially valueless speech did not make our Framers Orwellian censors. Rather, that generation recognized what Alexis de Tocqueville did: “despotism may govern without faith but liberty cannot.” The Declaration of Independence reveals that the Founders understood an inextricable link among “the laws of Nature and Nature’s God,” “self-evident” or objective “truth,” and the proper organization of political society. Self-government was the “entitle[ment]” of the Americans, as the Declaration put it, because it was the only form of government capable of safeguarding their God-given rights.
Unsurprisingly, the Constitution reflects this linkage. It requires that all U.S. states possess a republican form of government. In Federalist 43, moreover, James Madison justified the Constitution’s replacement of the Articles of Confederation without unanimous assent not by majoritarianism, but by “the laws of Nature and Nature’s God” requiring the sacrifice of institutions that fail to safeguard natural rights.
Accordingly, restrictions on speech content in the American past—be they laws against blasphemy, pornography, false statements, or libel, even in a political context—were not an effort to impose a political viewpoint on a community, in the fashion of today’s campus activists who adamantly (and sometimes violently) seek to censor conservative views. Rather, as Phillip Hamburger detailed in Natural Rights, Natural Law, and American Constitutions (1993), those restrictions were a function of natural law defining the contours of our natural rights.
Strictly speaking, the parameters set by natural law do not even constitute restrictions. “Right reason,” as the Pennsylvanian Founder James Wilson described it, simply did not consider the freedom of speech to encompass such valueless speech. As the Supreme Court would say in Chaplinsky v. New Hampshire (1942), the First Amendment does not protect words that “by their very utterance inflict injury” or that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Of course, the fact that a political community could restrict speech that is without social value does not mean it should in every circumstance—or that particular restrictions cannot be otherwise challenged as violations of one’s due process rights or other constitutional protections. Moreover, the fact that some speech conveying views antithetical to self-government, like that of the armed neo-Nazis in Charlottesville, may constitute a verbal assault or may incite violence does not mean that each and every expression of that viewpoint may be restricted. Justice Alito, dissenting in Snyder v. Phelps (2011), attempted to draw an analogous line between restricting the verbal attack that the Westboro Baptist Church committed against Albert Snyder in person during his son’s funeral, and the other mediums and means by which the members of that church could set forth their political views. The natural law, in other words, does not rob political communities of prudential judgment.
Notwithstanding the history I have mentioned, it is unfortunately a foreign concept to modern Americans that a community be allowed to draw distinctions between socially valuable and socially valueless speech. As Hamburger put it: “We have now forgotten the natural rights and natural law context of free speech and tend to perceive the ‘principle’ or ‘generality’ of speech to be merely the right to speak as one pleases.” The postmodern American, whose institutions and culture are steeped in moral relativism, may look askance at natural law’s definition of the contours of his rights. Understanding natural law requires moral confidence that there is: 1) objective truth that is 2) capable of being grasped, through 3) debate that is reasoned and civil.
All of these precepts are under attack today, but not from censorship.
When Americans lose faith in self-government’s ability to see the difference between the speech that facilitates truth-seeking and the speech that undermines republican government, the primary problem has nothing to do with free speech. As Jonah Goldberg put it when discussing why Progressives see no conflict between censoring conservative speakers and free speech: “The free speech argument is downstream of the real dilemma,” which is a lack of “civilizational confidence” among these Americans in the nation’s first principles of natural law and natural rights. Without such confidence, any distinctions that are made are not made based on the principles of self-government.
Thus the core problem with Progressive censorship: It is adrift from America’s foundational premise that a source of right and wrong extrinsic to temporal political power gives definition to rights, what is true, and what is good.
The Left’s interest in impugning conservatives by hanging the label of “hate speech” around their necks has nothing to do with the search for truth, and nothing to do with self-government. For some Progressive intellectuals, the search for truth is, itself, a social construction designed to benefit those in power. The goal of some Progressive censors, therefore, is simply to possess that power. As Richard Rorty put it in Achieving Our Country: Leftist Thought in Twentieth Century America (1998), “objectivity is a matter of intersubjective consensus among human beings, not of accurate representation of something nonhuman.”
In other words, truth is not the result of a search for what reason and nature reveal as objectively correct. Truth is not to be looked for as the product of debate or dialogue on matters of public concern. Instead it is simply declared by those with societal control over how people are allowed to understand phenomena. Those with power must therefore police the conformity of citizens to a certain narrative of public matters.
On this view, “truth,” as Professor Crispin Sartwell says when setting forth Rorty’s scholarship,
is nothing but a story we will all come to accept together—a progressive story in which inequalities of race, sex[,] and sexuality are steadily being ameliorated. The positions articulated by opponents of this narrative are false by definition, false from the outset, known to be false before they are even examined. It is then well within the values of academia—devoted to the truth—to silence those views.
This could not be more distinct from ensuring, as Alexander Bickel called them in The Morality of Consent (1975), “rules of civil discourse” connected to “a limited number of broad first principles concerning the ends of government” designed to ensure open debate without diversion by man’s passions and impulses.
The hard Left, having little regard for such rules, believes that violence may be used to enforce conformity with its worldview, even as morally depraved speech lacking in social value is entitled to free speech protection. Viewing the public square as a place where man’s base instincts ought to reign, they have made “marketplace of ideas,” as Bickel said, a “bullring” where the Left’s ideology, not right reason or objective truth, enacts a showdown with dissenters who deserve the fate of the bull.
And indeed the conception of the freedom of speech as a “marketplace” of ideas—where nearly all speech must be exempt from restriction and the only remedy to vile or abhorrent speech is “more speech”—has done nothing to restore Americans’ moral confidence. I would say it has further eroded that confidence. Far from ensuring a victory for socially valuable speech by exposing it to vile, abhorrent speech, all the “marketplace” approach has done is saturate the public square with vile, abhorrent speech.
The absolutist position is akin to a compass without a magnet: Without any extrinsic source of objective value—right reason and objective truth—to allow political communities to assign worth to any speech, speech’s worth is determined only by individual perceptions, and these perceptions are informed by one’s passions. When those passions are aggregated, as has happened with Progressive dominance on college campuses, the “marketplace of ideas” lacks any strength to stop a mob silencing views that do not accord with those of the dominant consumers.
This would likely come as no surprise to the progenitor of the “marketplace of ideas” metaphor, Justice Oliver Wendell Holmes, Jr. Justice Holmes described the absolutist view of the “marketplace” in ways that furthered his broader commitments to a law without values, and to freeing the “dominant forces” within a political community of any constraints from the phony concepts of truth and rightness. As he put it in Gitlow v. New York (1925): if “the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
Unsurprisingly, as Supreme Court jurisprudence embraced ever more tightly Justice Holmes’s “marketplace” absolutism, the law decreasingly set forth the foundational principles that allowed for the principled drawing of speech distinctions based in self-government. The Court’s own contrived balancing tests and hierarchies for speech-protection began to usurp the power of self-governing citizens to distinguish valuable from valueless speech. From here on out, speech could still be regulated or restricted, but only on the Court’s terms.
Then as the Court’s docket of free speech cases began to shift away from protecting political speakers, to protecting speakers purporting vile messages, the terms set forth by the Court began to be encased in sweeping rhetoric about individual autonomy. As Marc O. DeGirolami observed in Virtue, Freedom, and the First Amendment (2016), “one of the Supreme Court’s primary jurisprudential projects . . . over the last half century” has been “the ‘autonomization’ of the First Amendment.” This is the result of the predilections of the Court’s personnel, not original meaning.
By abandoning the original meaning of free speech, the Court’s interpretations result in a mismatch between absolutist rhetoric often deployed to protect vile speech and contrived restrictions on speech about matters of public concern. The Court’s record on protecting socially valuable speech—for example, speech incident to political campaigns and elections, pro-life speech, or religious speech—has been shaky, but its protection of the vile has confidently enveloped depictions of animal cruelty, graphically violent video games, lying about receiving military medals, shouting hateful epithets at a father burying his son, and most pornographic and profane expressions. It is far from clear why conservatives should see any benefit to continuing along this course, as it bears no relationship to originalism or the Founders’ political philosophy (saying nothing of its often disadvantaging conservatives’ own political causes).
Defenders of the absolutist view often claim that its consistent refusal to permit speech-content regulation constitutes a “neutral principle.” Perhaps this may even lead some conservatives to think that, as far as the Court’s jurisprudence is concerned, its primarily failing is in not being absolutist enough. But as Judge Bork explained in Neutral Principles and Some First Amendment Problems (1971), a principle is not “neutral” simply because it is consistently applied—it needs to be rooted in principle. Every theory of free speech is going to permit restriction of some expression; the question is, on what basis do the restrictions occur?
For its part, the Supreme Court has avoided the principle question by simply citing its precedent authorizing certain restrictions. But how can conservatives, if they take an absolutist view, defend in principle any restrictions on expressive autonomy? Conservatives have backed into an embrace of moral relativism in an attempt to safeguard their own station in the public square.
It would be foreign to the Founding generation to suggest that there is no principled way to hew the contours of the freedom of speech closer to what benefits self-government, rather than to what people’s passions compel them to emote at any given moment. Conservatives used to appreciate this. After Nazis marched on the largely Jewish neighborhood of Skokie, Illinois in 1977, William F. Buckley, Jr. possessed the moral confidence in self-government to repudiate the suggestion that “we indulge the little tyrants.” A Nazi march through a largely Jewish neighborhood, or a KKK march through the streets of Harlem, has the worth to self-government of “an obscene phone call.” Rather than hide such speech “under the umbrella of the First Amendment,” Buckley said “the moral is that little boys should not be given dangerous toys.”
Yet now, in reaction to neo-Nazi agitators in Charlottesville spoiling for a fight, some prominent conservatives maintain that any attempt at restricting such speech is just a prelude to “social justice warriors” running roughshod over conservative speakers. The only response, they claim, is that armed neo-Nazis looking for violence must be considered to have the same social worth to self-government and truth-seeking as someone coming to campus to defend the Electoral College.
There is no point to the search for truth if a political community must remain morally relative toward it. Devolution of the public square into vile ventilation seems inevitable when truth is only the province of individuals and not the community. A morally confident society—one possessing faith in its first principles—can see a principled distinction between restricting the expression of armed neo-Nazis looking for violence, on the one hand, and truth-seeking, on the other. In contrast, a society that cannot regulate damaging attacks on the public square calls into question the viability of all liberal principles.
“Where nothing is unspeakable,” Professor Bickel said, “nothing is undoable.” Conservatives should know human nature better than to embrace a valueless freedom of speech.