A Gloomy Future for Free Speech?

With a stroke of a pen, Ron DeSantis has officially surrendered the Republicans' status as champions of free speech.

When the so-called “culture wars” exploded in the 2010s, the issue of “free speech” was at the center of the conflict. For progressives, certain kinds of speech were deemed beyond the pale. Speech, they argued, is not simply words—it has real-life consequences that have the potential to be harmful, to prop up centuries of oppression, primarily on the bases of race and gender. This is where the oft-mocked “speech is violence” phrase came from. To claim, for example, that men and women possess innate biological differences could only serve to divide society and create a space in which women are not welcome. In practical terms, this often meant that there was no obligation to “platform”—to engage with, listen to, or even to tolerate—those propounding unacceptable perspectives.

For conservatives, freedom of speech was widely viewed as something almost sacred. From their almost laissez-faire perspective, any kind of speech regulation portended some kind of totalitarian violence and oppression, and threats abounded. The biggest enemies were “snowflake” leftist college students, their administrative allies in the “diversity and inclusion” apparatus, and eventually corporations that seemed to embrace “woke” progressive ideology. On the right, speech was presented during the 2010s as being not simply a bulwark of freedom in a healthy society, but a necessary tool for cultivating a marketplace of ideas, in which discourse and debate over controversial ideas constituted a social good.

Progressives accused conservatives of only subscribing to their positions on speech superficially. The reality, they argued, was that throughout human history, certain forms of expression have always been forbidden or regulated, either legally or through cultural orthodoxy. Indeed, for most of the United States’ existence, the primary arbiters of acceptable forms of expression were the wealthy white men who sat atop the country’s political and economic hierarchy.

Insofar as a new orthodoxy was emerging, progressives claimed, it was the product of a shifting balance of cultural power, in which heretofore marginalized groups were exercising their rights to speech and expression to set new boundaries. Conservatives were thus by and large unserious about free speech—it was merely a useful facade to preserve the dominance of older standards of what was and wasn’t acceptable to say. What conservatives really wanted was to stymie progressive cultural change, and free speech made for a viable Trojan horse.

If the past year tells us anything, it’s that progressives seem to have the bulk of conservatives dead to rights in this respect. Most conservatives haven’t gone quite so far as attacking the principle of free speech outright, but they’re approaching that territory. To be sure, they describe their attacks on “critical race theory” and LGBTQ issues as being necessary for the defense of liberalism against leftist illiberal ideology. And while it is true that critical race theory properly understood does critique some of liberalism’s foundational premises, it’s increasingly difficult to see the right as committed to the First Amendment both legally and in spirit. Across the country, Republican-controlled state legislatures have enacted a flurry of bills that limit the discussion of “divisive” concepts in public schools and workplaces, among other things that are arguably anti-speech. There’s also been a sharp uptick in book bans in school districts across the country.

Florida, as news headlines indicate, is the hotbed of this legislative activity. Governor Ron DeSantis has championed and signed a series of unprecedented speech-related-bills. The two most well-known are, of course, the “Don’t Say Gay” bill, which puts in place vague—but potentially quite aggressive—controls on what elementary school teachers can say in their classrooms about gender and sexuality, and a bill stripping Disney of its special tax status in Orlando in response to the company’s cricism of “Don’t Say Gay.”

But there are two others that touch on Florida’s public universities which could seriously hinder freedom of speech there. One subjects professors with tenure—a status designed in large part to protect controversial academic inquiry from the vicissitudes of politics—to the whims of political appointees. Another, signed on Friday, goes further than any bill passed in the country thus far to set limits on what “divisive concepts” can be taught and discussed in college classrooms.

Even if these bills do violate the First Amendment, it’s plausible they could survive legal challenges with the help of a very politicized—and conservative—Supreme Court. However this pans out, the core shock remains: the looming threat of state power being used to regulate speech by those that just a few years ago proclaimed itself free speech’s firmest defender. The selfsame individuals who mocked the notion that speech could be violence are now insisting that the mere discussion of LGBTQ identity in classrooms is a precursor to pedophilic “grooming.”

Of course, it’s a bit tedious to simply point our fingers and shout “hypocrisy!”. The hypocrisy is easily explained by the realities of political power. What’s far more urgent is a discussion of where “free speech” fits in America’s strained liberal democracy, especially in light of at-best tenuous commitments to it from both major parties.

The entire concept of free speech or free expression is ridden with thorny tensions and contradictions, ones that make it difficult to consistently legislate around controversies, and only more so when shared values are highly fractured in a country. One problem, threaded throughout the above discussion, is that there’s a difference between “free speech” as it’s codified in the Constitution (along with various statutes and court decisions defining its contours) and “free speech” as a principle to be upheld in all spheres of life in a liberal democracy.

While it’s fairly easy to say—unless you’re Ron DeSantis, I suppose—that the government has no business sanctioning private individuals or groups for speech, it’s much more difficult to resolve speech controversies within and between groups and individuals. For example, while the National Football League is entitled as a private organization to adopt a policy prohibiting players from kneeling on the field during the national anthem at a game, it’s hard to envision its actions as anything other than a violation of the principle of free speech. The only question is just how far that principle should extend into non-public life.

Another issue, also laced through the current legislative controversies, is whether or not prevailing social norms constitute violations of that principle of free expression. One thing that progressives are almost surely correct about is that there have always been and will always be orthodoxies that limit what is viewed as acceptable and not acceptable to say. Such orthodoxies can exist at the national or even international level, but also govern what people say in small informal groups, like gatherings of friends or family. Determining what social norms should prevail is a perennial subject of controversy (whatever the substance of those norms may be), as is the extent to which institutions (of whatever size and scope) are entitled to regulate expression before it becomes oppressive.

Of course, not every controversy over speech has to do with social etiquette or what is and isn’t offensive—conflicts over speech often go to the heart of politics, especially when it comes to speech critical of the regime itself. Indeed, some liberal democracies, like Germany, actually curtail speech which rejects liberalism or the constitution. While that’s a defensible approach to handling speech issues, it’s also arguably in violation of core liberal principles. This is no easy paradox to resolve. Whether a country prohibits certain kinds of speech or allows that speech at theoretical risk to its own survival is an extraordinarily difficult thing to weigh, and one that involves real tradeoffs. It’s a question of whether the ends can justify the means—if it’s acceptable to regulate speech to protect freedom of speech more broadly. Nonetheless, the elimination of “divisive concepts” in classrooms, for example, which might induce children to ask critical questions about their country’s past seems fundamentally at odds with core liberal principles.

These inherent tensions and contradictions in the idea of free speech make it difficult to work through the culture war issues that dominate our time. This is especially true given that culture war conflicts are often vehicles for other goals, such as the conservative movement’s longstanding desire to dismantle public education.

But old defenses of free speech, like John Stuart Mill’s argument that free speech creates a marketplace of ideas in which the cream rises to the top, also don’t suffice any longer. It would be almost unserious to argue that centuries of free speech in America have led to an increasingly enlightened public discourse, a fact helped little by the fracturing of forums for discourse into echo chambers in which dogmas are rarely challenged. Instead, the best defense of free speech is simple and practical. It allows us to hold those in power accountable by permitting us to openly criticize and investigate them, and prevents the government from singling out opposition groups on spurious grounds and throwing them in jail, or worse. It’s on precisely these practical grounds that the marshaling of state power against free speech in Florida and other states is so disturbing.

But the problem is that progressives haven’t made quite the same turnaround on the culture wars that conservatives have. Although they’ve been quick to point at the right’s hypocrisy, they haven’t mounted a robust defense of free speech against the right’s attacks. To be sure, they’ve vociferously opposed the othering of children in schools on the basis of sexual orientation or gender identity, defended teachers who are being unfarily maligned as “groomers,” and have been quick to critique the right’s stubborn refusal to confront the legacy of institutional racism in the US. But a defense of free speech—at a moment when it is under attack in ways not seen in decades—is hardly front and center.

This is a huge mistake. Not taking a stand for freedom of speech when a political party is showing plain willingness to violate the spirit and perhaps even the letter of the First Amendment is dangerous. This is doubly true for progressives, who are by far the most likely to find themselves on the wrong side of Florida’s new speech laws.

Perhaps this is partially because of the left’s culture war position that individuals should not enjoy an unlimited right to say offensive or controversial things. Perhaps progressives have enjoyed a reliably strong grip on the levers of cultural power—on college campuses, in the entertainment industry, and elsewhere—and for this reason they aren’t worried about what seems to be coming down the pipeline. While it may be hard to willingly embrace something which seems hypocritical, this too is a major mistake, because cultural and political power are very different. There’s simply no guarantee when political power frequently changes hands that a faction will be able to maintain its grip on what is and is not considered acceptable speech. Indeed, that very fact is a foundational reason for the principle of freedom of expression. And what’s more, cultural influence rarely stacks up against the political power; all the celebrities, college professors, and activists don’t hold much of a candle to the state.

If Democrats won’t pivot, it means that there’s a narrowing sliver of individuals in the country willing to fight for the idea that individuals and groups should be able to speak their minds without fear of punishment, whether that comes from the government or elsewhere. What remains is an ideological battle between factions ruled by their own orthodoxies. Since the right enjoys far more institutional advantages than the left (despite Democrats’ control of Congress and the White House), and has proven far more trigger-happy in wielding it on speech issues, it’s not difficult to say who’s likely to win.

Right now, the new legal controls on speech are relatively soft. The laws in Florida empower individual residents to bring suit against violators, rather than bringing the full force of the state to bear against them. They exist mostly in classrooms as yet. The laws won’t send anyone to jail; they threaten livelihoods, not lives. These are serious issues, ones that can make life hellish for teachers, professors, and students, but there’s always the possibility that things get even worse.

Before that happens, it’s necessary to develop a viable conception of speech that progressives and liberals can agree to fight for. Conservatives’ conception of free speech suffered, not just because for many it was a vehicle for other objectives but because it often failed to confront the aforementioned tensions and contradictions. True freedom of expression is not the unlimited right to say something without fear of critique. And despite idealized notions of a completely open discourse, the reality is that cultural trends will always act as boundaries. Achieving a realistic view of what free speech means requires not the elimination of those boundaries, but an honest conversation about the conditions under which they transform into violations of the principles of open discourse.

“Free speech” means living in and embracing a world of contradictions. That isn’t the same thing, however, as deciding that it’s all bunk and abandoning it. At a moment when freedom of expression is under just the kind of threat that conservatives accused progressives of being responsible for not so long ago, it’s more important than ever that free speech has serious defenders. If it doesn’t find any, or doesn’t find enough, Florida’s new laws may just be the beginning of something monstrous.