As some of you know by now, I have taken time away from my libertarian-minded commentary to focus on my Jewish theology blog. Nevertheless, when I encounter an influential public figure such as Josh Hammer writing something that impugns the absolute (apart from unrealistic philosophical thought experiments) value I assign to free expression, the temptation to reply becomes too powerful to resist. As I (following Nozick) argue in chapter three of my Libertarian Philosophy in the Real World, the paramount value of human life rests on our “rational agency;” that is, the Kantian notion of persons as responsible moral agents.
Because it doesn’t rest on defeasible utilitarian calculations, this notion provides the most robust protection for free expression, and extends even to “hate speech”:
The suppression of bigoted, malicious speech is wrong because it treats our rational agency as something that may be sacrificed to spare the feelings of others or to promote a supposedly higher value. The punishment of hate speech or other communication that most of us find highly offensive deters persons from expressing themselves. We thus limit their freedom, and rob others of the opportunity to be virtuous by rebutting these repellent ideas. (p.50).
In his short essay, titled “Is Free Speech Really the Highest Value?” Hammer argues that free expression has only limited intrinsic value, first in promoting the common good and relatedly in discovering the truth:
The foremost goal of politics, since time immemorial, is to best pursue and realize the common good. Free speech certainly has some intrinsic value, as one good in the broader basket of goods constituting the common good. But free speech has even more value not as an intrinsic matter but as an instrument used toward other substantive ends….
[W]e maintain systems of free speech and free questioning because we believe it is helpful in pursuing The Truth (emphasis in original). In bilateral or multilateral colloquy, it is the truth of the matter with which are primarily interested — not in ensuring that any individual feels heard or seen.
I don’t believe this position survives more than casual scrutiny. First, it’s typically been the Left that appeals to the “common good” to justify its whole panoply of rights-violating, bureaucratic, fraud-infested, incredibly wasteful and inefficient hare-brained schemes. A very short sample would include the welfare state, government-monopoly schools, gun control, government-provided healthcare, etc. Obviously, there is the most intense controversy regarding the moral legitimacy and efficacy of such programs, so it’s shocking to hear a conservative assume that there is such a thing or that we as a polity can ever agree upon it. Whether promoted by the left or the right, the “common good” can only be achieved by impermissible coercion. No liberty-loving person can accept this.
Second, the idea that free expression is valuable solely as a means of getting to “The Truth” is even more illusory. The truth is ever-changing. Not so long ago it was thought that chattel slavery was morally permissible, and abolitionists were tarred and feathered, or worse. So too, it was held that women shouldn’t vote, own property, or attend medical or law school, and homosexual sex was a serious crime. Mr. Hammer and his fellow travelers may be quite wrong about the truth and by affording speech less than absolute protection, thereby impeding us from reaching it.
Moreover, once you endorse the principle that the state may legitimately censor speech, any speech [1], you have crossed an extremely dangerous threshold. There is no objective way to distinguish between expressions that are “pure” hate speech and those that are merely hated by a majority of listeners. Entrusting the state with this power is akin to putting a loaded gun in the hands of a young child. Finally, while this may be hard for some to accept, even bigots have rights, and by letting them identify themselves they do the rest of us a favor. Further, we may learn something in thinking about the most effective arguments for countering them.
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1. People often confuse crimes committed by means of speech with expressive speech. For example, “your money or your life” is a criminal threat and so not protected.
