Discover more from Postliberal Order
What is Free Speech For?
Our resident philosopher Edward Feser dispels certain mirages that liberalism creates around “free speech” by way of a teleological understanding of the right to speak the truth and uphold the good.
It is easy to assert that one has a right to something. People do it all the time in contemporary moral and political discourse. It’s considerably less easy to justify such an assertion – and thus unsurprising that assertions greatly outnumber justifications. But the denial of a right can be just as glibly asserted, and as hard to justify.
The topic of free speech affords important examples of both sorts of assertion. For much of modern American political history, the right to free speech was appealed to in defense of the toppling of taboos and laws, such as those against blasphemy and obscenity. More recent years have seen a shift in the opposite direction, toward calls for curbing free speech where it threatens to offend egalitarian scruples.
But why believe in the first place that there is a moral right to free expression that is so expansive that it would, for example, permit pornography to be as easily accessible as the nearest cell phone, even to children? Or why believe that the right to free speech is not expansive enough to allow for whatever aprogressive would label “hate speech”? Again, assertions are easier to come by than justifications.
Where moral and political discourse has effectively degenerated into a war of competing intuitions and sentiments, the remedy is to take things back to first principles. We need to ask exactly why it is that human beings can be said to have any rights at all in the first place. That will afford a way of determining whether there is such a thing as a right to free speech, specifically, and if so what its scope and limits are. What follows is an account of how these issues are approached within the natural law tradition that builds on the thought of Aristotle and Thomas Aquinas.
Natural law and natural rights
This traditional natural law theory begins with the thesis that the things that make up the natural world around us have natures or essences, and that by virtue of their natures, they are aimed or directed toward the realization of certain ends. For example, a tree is by nature directed toward ends like sinking roots into the earth and growing leaves; a bird is by nature directed toward ends like laying eggs and building a nest to shelter them; a squirrel is by nature directed toward ends like gathering nuts and acorns; and so on. (This view sometimes goes by the fancy name teleological essentialism. It is essentialist insofar as it takes things to have essences or natures as a matter of objective fact rather than merely by virtue of our classificatory practices. And it is teleological insofar as it takes directedness toward an end to be a real and irreducible feature of the natural world.)
What is good for a thing, according to natural law theory, is what facilitates the realization of these natural ends, and what is bad for it is what frustrates such realization. For instance, it is good for a tree if it is able to sink strong and deep roots into the earth, and bad for it if termite damage or disease prevents this from happening. It is good for a squirrel if it is able to gather many acorns and nuts, and bad for it if circumstances made this impossible, or if some injury or odd genetic defect made it disinclined to even try. These judgements about what is good and bad are entirely objective, grounded as they are in facts about the natures of these things and their teleological properties.
Now, what is true of other natural phenomena is true of human beings too. We have a nature or essence, and our nature directs us toward the realization of certain distinctive ends. Specifically, for natural law theory, we are by nature rational social animals. Ends like securing food and reproducing ourselves follow upon this, given the animal side of our nature. But the rational side of our nature entails further ends unique to us, and also transforms the ends we share with non-human animals. Rationality entails the capacity to form abstract concepts, make judgements about the truth or falsity of propositions, and reason logically from one proposition to another. This makes possible philosophy, science, morality, religion, law, art, music, literature, and culture in general. It transforms what in animals is mere feeding into the social event of the meal, the development of national cuisines, and so on. It raises what in animals is mere mating into the institutions of marriage and family.
Realizing these ends is as objectively good for us as nest-building is objectively good for birds and sinking roots into the earth is objectively good for trees. And whatever frustrates the realization of these distinctively human ends is objectively bad for us. Unlike trees, birds, and squirrels, though, we can know what is good or bad for us and choose either to pursue the former and avoid the latter, or to fail to do so. And because such pursuit and avoidance are, in us, subject to the will, they take on a moral character.
This is just a brief sketch, and, naturally, natural law theorists have a great deal more to say by way of defending the theory’s presuppositions and elaborating on its implications. (I’ve done that myself in many places, such as here and here.) The point for present purposes is to explain the context within which natural law theory would situate the notion of rights. Now, to have a right is to possess a moral power to claim some thing or action as one’s own. For example, to have a right to one’s home is to have the moral power to alter and furnish it as one likes, invite inside whomever one wishes, prevent others from taking or using it, sell it to another if one no longer wants it, and so on.
Many traditional natural law theorists would argue that the existence of such rights is a corollary of our obligations under natural law. For example, our nature aims or directs us toward marriage and family. Naturally, fulfilling this end presupposes finding a spouse with whom we can have children. Once we have children, our nature directs us toward providing for them materially and spiritually if they and the family of which they are a part is to flourish. Now, if nature aims us toward forming families and obligates us to provide for them once we form them, then we must have a moral power or right to do so. For if we did not, we would be frustrated from realizing the ends and fulfilling the obligations in question. The natural end of building a family is thus, for natural law theory, the foundation of the right to marry and to educate and otherwise provide for one’s children.
In general, for natural law theory, rights function as safeguards on our ability to purse the ends toward which our nature directs us and fulfill the obligations imposed on us by natural law. But this teleological foundation not only creates rights but also limits them. For example, because children are ignorant without the example and instruction initially provided by their parents, parents have a right under natural law to educate them — to teach them right from wrong, give them religious instruction, impart basic life skills, and so on. But they have no right to teach them just any old thing they like. For example, no parent has a right under natural law to encourage a child to take up a life of crime, or heroin use, or sexual immorality. For those things would positively frustrate a child’s capacity to fulfill the ends and realize the obligations nature sets for us, and rights exist precisely to facilitate such fulfilment.
This too would naturally require greater elaboration and defense in a fuller account, but the point for the moment is just to explain how natural law theory approaches the question of the right to free speech. So let’s turn at last to that.
The right to free speech
The first thing to say is that speech is a natural human capacity – just as walking, grasping things, eating, perceiving, and the like are – and that its function is to convey to others what is in the mind of the speaker. Hence human beings can’t flourish as the kind of thing they are without the freedom to speak their minds, any more than they could flourish without the liberty to walk about, pick things up, eat, see and hear, and so on. Given the teleological foundation of rights as safeguards of our ability to do what we need to do in order to realize the ends toward which our nature directs us, it follows that there is a right under natural law to freedom of speech.
Now, among the things we might convey through speech are sensations (as when we yelp in pain) and emotions (as when we shout for joy or wail in sorrow). However, it’s primarily what is in our intellects – in particular, our judgments about what is true or good – that speech conveys. Indeed, in human beings, even the expression of a sensation or emotion is typically filtered through the intellect. If I say “It hurts!” rather than just letting out a yelp, or yell “That’s wonderful!” rather than emitting alaugh, I convey a proposition, something capable of being either true or false and thus susceptible of rational evaluation. Now, our intellects have as their own natural end the pursuit of what is true and good. Hence it’s not just any old content that speech has the natural function of conveying. Rather, the end for the sake of which our natural capacity for speech exists is the expression of what is true and good. Thus, the right to freedom of speech is, more precisely, the right to speak the truth and to uphold the good.
This clearly entails some limits on the right to free speech. There can be no right under natural law to speak lies or to promote evil, since that would be directly contrary to the end for which the right to free speech exists. But before getting to the limits this entails, let’s note what it does not entail, and how extensive the right to free speech is. Certainly no one could justify limiting another’s right to free speech merely because he judges what that person says to be false or bad. The reason is that the would-be censor’s judgement about the speaker’s utterances might itself be false or badly motivated. Nor, to remedy the problem, does it suffice to appeal to the judgement of the majority, or the judgement of government officials. For majorities and governments can be fallible and corrupt too, just as the individual would-be censor might be. Nor does it suffice even to appeal to the judgment of experts. For experts too can often be wrong or corrupt. And even when they aren’t, non-experts can be influenced by error or corruption in their judgements about who the best experts are.
So, when determining the scope and limits of the right to free speech, we need to consider not only the fact that the pursuit of the true and the good is the end for the sake of which our intellects and capacity for speech exist. We also need to consider the fact that we’re liable to error and moral failure. Now, as rational social animals, the fundamental way we remedy these defects is precisely through the give-and-take of rational debate and moral criticism. Part of how we discover what is true and good is by freely discussing different opinions, and finding out which, in the long run, have the better arguments in their favor. Hence, our fallibility and propensity to moral error not only shouldn’t make us quick to limit the right to free speech, but on the contrary, should make us more reluctant to do so. This is, of course, the basis for John Stuart Mill’s classic defense of free speech in On Liberty, and the traditional natural law theorist can agree with some of Mill’s analysis. There is at least a strong presumption against limiting free speech even when we judge what a speaker says to be erroneous or evil.
The limits of free expression
All the same, the presumption can be overridden, which brings us to the limits on free speech. To begin with what’s least controversial, there can be no right to speak in a way that causes immediate, grave, and irreparable harm to an innocent person, such as by unjustly destroying the person’s reputation or threatening bodily harm or death. Hence even the most passionate defenders of free speech typically allow that libel, slander, and incitement to violence should be prohibited by law. Similarly, seditious speech can justly be prohibited, since natural law theory takes the state to be a natural institution that is necessary for human well-being. (To be sure, it also holds that a tyrannical state can justifiably be overthrown under certain circumstances, in which case speech that calls for and organizes such overthrow would not be seditious or otherwise unjust. But developing principles allowing us to tell the difference between sedition and justifiable resistance to tyranny would require a treatment of issues in general political philosophy that go well beyond questions about the right to free speech per se.)
More controversial will be the natural law position that pornography can and ought to be forbidden by law. Naturally, this reflects the natural law approach to sexual morality, which is itself controversial and requires a separate defense. (I’ve said more about that topic elsewhere.) But given that approach, pornography can be judged to be gravely destructive of the social order insofar as it tends to foster a separation of sex from marriage and family, thereby destabilizing the institution of the family, which is the fundamental social institution. Hence it can be forbidden on a principle analogous to the one that justifies forbidding seditious speech. Since both free speech and a stable social order exist in order to facilitate our pursuit of the true and the good, speech that directly undermines the stability of that order and thus frustrates our pursuit of the true and the good is not something we have a right to, and indeed something that the state has a right to forbid.
Note that considerations about the fallibility of our judgments, which justify a presumption against forbidding the expression of ideas we take to be erroneous or evil, do not apply in the case of pornography. For pornography isn’t intended in the first place to appeal to our intellects, but rather to our passions. If we outlaw a philosophical or scientific work that we sincerely but wrongly judge to be erroneous, we might inadvertently prevent ourselves from learning some important truth. That is the classic Millian argument for the free exchange of ideas. But outlawing a pornographic work doesn’t deprive us of the opportunity to entertain an idea or discover some truth, because pornography is aimed at titillation rather than conveying ideas or truths. Millian considerations are simply irrelevant where pornography is concerned.
It also won’t do to object that governments might be mistaken in judging pornography to be bad and worthy of suppression, or that some citizens will disagree with this judgment. For that would prove too much. No one argues that government shouldn’t levy taxes or carry out any police or military functions, on the grounds that it might be mistaken in judging these things to be morally acceptable. Of course, anarchists would object to these functions of government, but that is precisely why they propose abolishing governments altogether, not maintaining them while stripping them of these functions. For governments couldn’t exist at all without these functions. Hence, no one who supports the existence of governments can take the bare possibility that we might be mistaken about the justifiability of these functions, or the fact that some citizens object to them, to be a reason for government not to carry them out.
By the same token, the bare possibility that a government might be mistaken in its judgment that pornography is bad, and the fact that some citizens disagree with that judgment, don’t suffice to show that governments shouldn’t ban pornography. If you argue against all interferences with free expression on the grounds that government is fallible, then to be consistent you’d have to argue against any laws at all, since governments can make mistakes when implementing any law, not just laws forbidding certain kinds of expression.
Another sort of speech that governments can legitimately suppress is speech that poses a grave risk of subverting the very possibility either of free speech itself, or of our realizing the end for which free speech exists, namely the discovery of the true and the good. For example, suppose some political movement rejected the very principle of free and rational debate and sought to gain power so as to prevent such debate from occurring. Karl Popper famously noted that the view that a government shouldtolerate even the expression of ideas that are in this way subversive of free expression generates a “paradox of tolerance.” And he argued that a government must at least reserve the right to suppress such views if they ever have a serious chance of prevailing.
The natural law tradition takes the same position. Similarly, suppose some view that denies the very possibility of arriving at knowledge of the true or the good prevails in society. Then speech will no longer be seen as an instrument for conveying truth and goodness, but rather a tool for manipulation and sophistry. Free speech would in that case come to be a source of error and injustice. Hence governments can legitimately suppress the expression of radical forms of skepticism and relativism and other doctrines that would subvert the very natural law that grounds the right to free speech, when there is a danger that the influence of such doctrines might spread beyond an eccentric and ineffective minority.
Certainly it would be absurd for those whose speech is suppressed in such cases to complain. For how could they possibly have grounds for complaint? Suppose someone holds that truth and rational debate are illusions and mere masks for the interests of power. That would apply to that person’s own assertions and arguments no less than to others. So how could he claim that a government would, by suppressing his view, be frustrating rational debate and denying us knowledge of the truth? Or suppose someone holds that there are no objective facts about what is good or just. How could he claim that a government that suppressed his view would be acting unjustly or preventing good from prevailing?
The case is analogous to the state’s use of violence to punish and deter violent criminals. Those who threaten or harm the lives, liberty, and property of others have thereby forfeited their own rights to life, liberty, and property, and therefore can (in a manner proportionate to the offense) justly be deprived of these things. Similarly, those who act to subvert the possibility of free speech or the realization of the ends for which free speech exists thereby forfeit their own right to free speech. This will seem paradoxical only if we fail to keep in mind the teleological foundation on which the right to free speech, like all rights, is grounded.