One of the perennial difficulties with the discourse regarding “free speech” is that many people seem to lack a clear idea of what exactly “free speech” is. This is further complicated by the fact that there are several valid definitions of the phrase, all of which have linguistic and historical cases that their definition is the “true” free speech. A person who defines “free speech” as mere protection against government censorship, as enshrined in the First Amendment, can reasonably defend their definition. Similarly, another individual may define “free speech” as an environment where all speech within the boundaries of the Overton window is safeguarded, while yet another person may consider “free speech” as the absence of any legal or social consequences for speech unrelated to criminal actions. Not that these are all good ideas, but even the bad ones on the list are not committing a linguistic offense when they define “free speech” the way they do.
Thus, it would seem prudent to sketch out exactly what people mean when we advocate for, or argue against, “free speech.” Particularly, those of us who advocate for free speech need to be clear about what exactly we are advocating. I do not claim to speak for any part of the free speech movement here, but I merely wish to state, for the record, what I mean when I say free speech. I do, however, think that I am not alone in defining free speech as I do below. Here is what I think we mean, or at least what I think we ought to mean, by free speech. Free speech is the presence of all of the following.
- Legal protection for all speech not aimed at a specific criminal action which is not itself a speech related offense. (Essentially the modern American constitutional standard for criminalizing speech)
- Lack of social consequences for the expression of all speech which is genuinely aimed at communication, regardless of whether these expressions are in the Overton window.
- The existence and prominence of social spaces designed to promote the discussion of both the fundamental questions of civilization and the most difficult and controversial questions which it faces.
What I want to focus on here are points two and three. Point one often dominates discussions of free speech, and we have perhaps become over accustomed to thinking of legal protection for speech as the only necessary requirement for free speech. Essentially, with narrow carve outs for speech directly involved in committing criminal action (such as discussing an upcoming robbery or the unauthorized transmitting of classified information), we simply do not let the government outlaw “mere” speech. There are a whole host of complications related to government funded institutions, government employees, and speech at government sponsored events, but the general framework has been relatively firmly established.
However, all of the jurisprudence in the world cannot alone answer the question of what the social structure of free speech should be. How should civil society, how should we in our private lives, treat free speech?
We might ask whether the social and legal standards for speech should be identical— whether any First Amendment protected speech should be socially protected speech. Such a system would immediately break down. People are constantly saying cruel, malicious, deceitful, treacherous, and generally ugly things which are protected by the First Amendment. These words are rarely accompanied by actions, they do not need to be, for they are destructive enough on their own. Even if we wished to protect such speech categorically from social censure, it is clear no one would ever agree to it— we cannot ask people to continue to exist on the polite terms of social relationship no matter what the other person says. And we would not wish to, for the threat of social ostracization is a critical part of convincing people to generally treat other people civilly.
Social consequences can mean anything from treating someone a bit more coldly than you otherwise would to refusing to associate with them more than necessary, or even cutting them, and anyone who still associates with them, out of your life entirely. You could even try ruining their life on Twitter. The question is whether a culture which embraces “free speech” allows or encourages people to inflict some or all of these consequences in response to some types of legal speech.
One thing to realize here is the vast majority of speech is superficially apolitical. One can then ask whether it might make sense to have different standards for political and apolitical speech— whether we can allow any legal political discourse consequence free while having a much stricter standard for apolitical speech. While something like this is what I will eventually propose, the idea does have a few problems.
First, “the personal is political.” Political issues do not exist in a vacuum but, rather, manifest in response to social or cultural dynamics. “Politics is downstream of culture.” Here are two concrete examples of this. Firstly, criticism of religion would certainly appear to be political speech. Moreover, expressions that the deeply religious may regard as blasphemous are not merely protected speech but actually fall within the realm of “political” speech, referring to speech addressing political subjects. According to this perspective, such speech would not be subject to any social consequences. However, someone uttering blasphemes with obvious malicious intent and then hiding behind “I’m just making a political statement” would nonetheless be worthy of social censure. Similarly, how our government and culture should handle the increasing prominence of transgenderism is a political question, but using the political nature of the question as an excuse to constantly bully particular people, as does frequently happen, is also deserving of social censure. So clearly, there must be allowable social consequences for even political speech.
One key distinction we could make is between speech intended as communication and speech intended as optimization. Communicative speech is aimed at creating common knowledge (in the game theory sense of that word) of the truth. Optimizing speech is aimed at getting reality, or the other person’s mind, into a particular state. Optimizing speech is usually perfectly innocent. “Please pass the salt” is an attempt at optimizing reality, and so is a poem attempting to create an emotion in the listener. The problem comes when you are either being deceptive or manipulative in your optimization. If you are optimizing over a conversation when one or more people involved has been led to believe that either you are engaged in an honest attempt to create common knowledge of truth or you are optimizing for something different than you are, then that is deceptive. If you are optimizing someone against their own best interests, either by pushing them to do some action that is harmful to them, directly harming their mental state, or by trying to induce a particular emotion in them in a way they would not endorse, then that is manipulative, even if everything you said was both honest and true. Mark that manipulation and deception as defined here often operate in tandem, and the line between them is sometimes blurry.
I would thus propose the rule for social regulation of speech: speech should face social censure if and only if it is optimization and deceptive or manipulative. Attempts at creating common knowledge of the truth should never face social censure. Not only is this type of speech able to avoid much of the damage that words can do to people, it is also vital to ensuring we can continue the essential project of accurately understanding reality, that people can work in good faith to create common knowledge of truth without being afraid of social censure.
One problem with the above is that people will really be optimizing while they pretend to be truth seeking. See the “brutally honest” stereotype, who manipulates people with poisonous words while claiming they are merely “telling it like it is,” or people who constantly drag up politics at inappropriate times, not out of any sincere desire to communicate, but out of a pleasure in the discomfort of others.
One way we get around this is by having rules and norms which people interested in honest communication all agree to follow. Norms are usually either context or content based, or some combination of the two. For instance, maybe we all agree to avoid discussing controversial topics during mealtimes: “no religion or politics at dinner parties.” That would be a context based norm. Or maybe in conversations regarding gender and sexuality, we all agree on a list of words whose communicative value is low enough and whose manipulative value over the emotions of listeners is high enough (I am thinking here of “slurs” but any word of sufficient emotional valence would qualify) that they should not be used for communication on this issue. This is a content based norm. Both of these norms are perfectly legitimate so long as there are spaces and times, clearly agreed upon, in which these rules themselves can be debated (in these spaces obviously, allowing the speaking of slurs would be necessary to discuss them. So, it would seem prudent to be very careful when constructing these spaces to ensure optimizers don’t secretly co-opt them to target the object level discussion.)
I would in fact argue that what is commonly called “political correctness” as distinct from wokeness, was a necessary attempt at making language less easy for bad actors to use to disrupt discourse, which ended up going off the rails. This is because, while some optimizers want to present optimization as truth, others want to present truth as optimization. There are many people who benefit from ensuring that common knowledge of truth can not be created on particular issues, and if they can brand people engaged in communication as secret optimizers who must be socially censored, or create rules for social spaces which render accessing them arduous (think the minuscule “free speech zones” we have seen on some campuses) they can effectively prevent common knowledge of truth from being created. This was the root of the most common criticisms of political correctness, that it stopped being about creating norms for good faith communication and started being about rendering certain topics undiscussable, no matter how careful people were to use proper norms for good faith communication. I think this critique is only somewhat valid, but that is beyond the scope of this article. The main point is that the common story told about political correctness serves as an example both of an attempt to create good norms and how such an attempt can go wrong.
We have been bleeding into the third point for quite some time now, with all this talk of spaces. Because of the fine line between communication and optimization, and between good optimization and bad, and because sometimes people are using words in a hurtful way even when they are honestly trying to communicate, we need mores surrounding speech that are more detailed than “just communicate in good faith, and you will face no social censure.” These rules, however, need to be both stringent enough that they keep optimizers from parenting to be good faith communicators and opportunities for anyone who wants to engage in good faith communication to do so effectively. What exactly these norms should be at UT, let alone in 21st century America, is beyond our scope, especially since there are many sets of rules which would preserve free speech while making different tradeoffs, but there are a few principles which mores that desire to preserve free speech should follow.
First, they should make clear that anyone who keeps to them will not face social censure, even if the truth they are trying to communicate is really dumb or their opinions are just terrible. This may sound like it means having to hang out with a bunch of people with really annoying beliefs, but it is not as bad as it may sound. Many of the people who say things average people find terrible do so because the things they say were optimized to sound terrible, to get a rise out of people or to “trigger” them. These people will be excluded by the no optimization rule. If someone with a weird idea we would normally socially censure is actually abiding by the norms of good communication, they are more likely to be exactly the type of oddball from whom society has something to learn— abolitionism and heliocentrism started out as weird ideas, and it would have likely been better if their advocates had not been socially censured for such.
Second, all norms should have procedures for challenging them. If someone honestly believes that communication is being hampered by a particular norm, they should be able to challenge it. The way in which the challenge can be conducted must be widely known and accessible, although not as accessible as spaces to discuss the object level issue. If for some reason there is a norm which should not be challengeable, then you can, if you absolutely must, have a norm for that, but that meta norm should itself be challengeable. The fewer levels of recursion the better, but every norm must be able to be reconsidered somehow because otherwise bad norms can render arbitrary regions of thought off limits, with no safe way to discuss whether they should remain so.
Third, while spaces for the discussion of emotionally valent ideas, which include the interesting parts of politics, religion, and really anything which people care a whole lot about, and therefore of which they want to know the truth, will of necessity be more tightly regulated by social mores than common topics of discussion. There should be an explicit norm that all rules should, within their other constraints, maximize the number and prominence of spaces for communication. If more such spaces exist, then promoting common knowledge of the truth will be easier, and therefore more people will do it and our epistemics will be better. Thus, if there is not an easy way to talk about an important issue, or no one feels safe using the spaces set aside for the issue, that is a sign that something has gone wrong with the mores and should be fixed.
There are more norms which I believe we should have, but I believe any functional system of free speech and free thought needs these three.
This, generally, is what I, and many others like me, mean when we say free speech. The above formation still has several details which need to be further developed, such as how practical ever implementing a full version of this system would be, what sort of social consequences should various types of optimizing language carry, what, more precisely, is the boundary between optimizing and communicating language, and how this theory interacts with ideas such as political correctness, wokeness, academic freedom, and inclusion. I will perhaps discuss these in future articles.