Disagreeing Reasonably in a Complex World: A review of ‘The Case Against Free Speech’
By Robert Jensen
Published in Dissident Voice · October, 2019
In my last couple years of university teaching before retiring, I repeated two catch phrases as often as possible—“reasonable people can disagree” and “if two things are both true, then both are relevant.”
The first assertion—which I used so often that at the end of one semester a student gave me a coffee mug with that line printed on it—is a plea for civility among people of good will as we vigorously debate contentious issues. Such engagement fosters productive intellectual and political lives.
The second is a reminder that the world is complex, and a caution against the temptation to eliminate evidence and arguments out of fear that they may threaten a treasured belief. That’s also crucial for building a healthy intellectual and political life.
Both of those slogans were on my mind (more later on why) as I read P. E. Moskowitz’s The Case Against Free Speech: The First Amendment, Fascism, and the Future of Dissent, a useful book that is at times ridiculous, frustrating, and self-righteous.
I say “useful” because the book includes some excellent reporting about contemporary free speech debates along with informative historical background that can deepen a reader’s understanding of the issue and the larger struggle for a decent world. But the book ultimately falls short because of its philosophical confusion, selective attention to issues, and smug tone.
First, on the philosophical confusion. The book begins with a desperately-trying-to-be-bold claim:
This book is not anti-free-speech. It is anti-the-concept-of-free-speech. It’s an important distinction. Everyone should have the right to say what they want. I will not argue otherwise. I am not an authoritarian.
I’m not sure whether I agree or disagree, because I don’t understand what that means.
Free speech is not a naturally occurring object. It’s an idea, a notion, an aspiration, an approach to politics, always involving a theory about what it means to be human in a particular society at a particular time. In short, free speech is always a concept. Our desire to speak freely requires everyone, including Moskowitz, to develop a concept of free speech.
The Case Against Free Speech does articulate a variety of complaints and concerns about some of the conventional claims about free speech in the contemporary United States. In other words, Moskowitz’s concept of free speech diverges from other people’s concepts, which is fine—people argue about concepts all the time. I happen to share many of those concerns, which were the focus of a book I co-edited 25 years ago.
Also confusing is the claim that “everyone should have the right to say what they want,” which is contradicted by the rest of the book and Moskowitz’s rejection of the legitimacy of some kinds of expression, such as racist speech. But the larger point is that no one really argues that everyone should be able to say what they want. To hold that position would make one a moral monster. Let me explain.
Every society draws a line between the stories one can tell freely, without the risk of punishment, and the stories that might get you in trouble. Every society draws a line between permitted and prohibited speech. Different societies draw it in different places, and a single society draws it in different ways over time.
There is no serious “absolutist” position on free speech, even though people sometimes claim to hold such a thing. An absolutist would have to reject any collective action against child pornography, libel, insider trading, blackmail, direct threats of violence, fraud in commerce, sexual harassment, and dozens of other categories of speech that we rightly punish in some way. Everyone can’t have a right to say what they want, because speech can, and does, result in tangible harm to others.
That means that every society must balance the harm or potential harm that speech can cause with the value of that speech to society. Child pornography (now increasingly being called child sex abuse images) is extremely low-value speech that cannot be created without extraordinary harm—not much debate there. Making false assertions of fact that injure someone’s reputation gets more complicated, but almost everyone accepts the need for libel law.
We argue about how to understand harm, and how to assess the consequences of speech that harms. We argue about the value of various kinds of speech. And we argue about the rules that govern this messy balancing act. But at the core is an endlessly fascinating question for we humans, the storytelling species: What stories can we tell and what stories are off limits? Where do we draw the lines?
This isn’t news to Moskowitz—the first chapter of the book is “The Line,” which recounts the story of the Nazi rally in Charlottesville, VA, that ended in the murder of Heather Heyer. The author asks, “Where was that damn line?” between protected speech that articulates or endorses white supremacy, and speech-connected-to actions that kill (the U.S. Supreme Court in 1969 said it’s when words are incitement to “imminent lawless action”). Two pages later, Moskowitz acknowledges, “We have a lot of line-defining work to do.”
Like everyone else, Moskowitz is working out how to understand the concept of free speech. What makes the book ridiculous is framing that inquiry as if it were something different, in what appears to be an attempt to claim some kind of moral high ground.
Moskowitz argues, appropriately in my opinion, that any concept of free speech that doesn’t reckon with oppressive systems of power is inadequate, which is also true of every other social/political/economic issue in the contemporary United States.
For example, the book points out that in a capitalist system which creates vast economic inequality, rich people have more resources to create and circulate speech than poor people. That’s obviously true, and a point that left-leaning scholars and activists have been making regularly for at least the past century. Much of the book also examines how white supremacy distorts the dominant culture’s ability to recognize and accurately assess the harms to people of color, another essential element of any serious examination of free speech.
What’s striking about the book is the almost complete absence of inquiry into patriarchy, the third of the big-three systems of illegitimate authority. Take a simple example, the prevalence of sexually harassing speech in the lives of girls and women—on the street, in schools and universities, on the job, and online. There is a lot of line-defining to do when it comes to men’s uninvited sexual and sexualized intrusions into women’s lives. Moskowitz need not include every possible issue in a book, of course, but the failure to note the relevance of these issues in crafting a concept of free speech is hard to miss.
An even more glaring absence is the feminist critique of pornography, which emerged in the 1970s and ‘80s at about the same time that Critical Race Theory scholars were articulating a case for the regulation of racist hate speech. The two arguments were, and remain, similar in moral and theoretical dimensions—so much so that in 1993 a conference at the University of Chicago Law School on “Speech, Equality, and Harm” included major figures in both movements. Feminists continue to develop serious analyses about the harms associated with the production and use of pornography. (My own research and writing on the subject can be found in articles and the book Getting Off, all available free online.)
In the quarter-century since that conference, commercial heterosexual pornography (the bulk of the market) has become more intensely cruel and degrading to women and more overtly racist, which might suggest that today’s left/progressive/radical activists who challenge the libertarian/liberal orthodoxy on speech would make the feminist critique part of their project. Instead, those left activists tend to reject the critique and embrace a “sex work” analysis that is libertarian not radical, and embraces liberal individualism rather than a traditional leftist focus on systems and structures of power. The only mention of these issues in The Case Against Free Speech involves a specific internet regulation and indicates that the author does indeed embrace that libertarian/individualist agenda.
Whatever conclusion one reaches about the appropriate legal response to sexist and racist pornography, the issue is relevant to a serious treatment of free speech politics that wants to claim left/progressive/radical roots. This failure is not Moskowitz’s alone; it’s common for leftists who reject liberal politics on most everything to embrace liberal politics on pornography and the other sexual-exploitation industries (prostitution and stripping). What makes the book frustrating is this willful avoidance.
Back to the two truisms from the start: Reasonable people can disagree, and if both things are true then both are relevant. Moskowitz falls short on both counts, which accounts for the book’s self-satisfied tone. That’s particularly disappointing to me, because for the past 30 years I have been part of a number of left political movements and taught courses about free speech. The goals of challenging oppressive systems of power and nurturing good intellectual practices matter to me, and the book is less useful for these projects than it could have been.
On politics: The Case Against Free Speech has much to offer a reader, but I can imagine many readers who disagree with Moskowitz’s politics deciding not to hang around long enough to finish the book. The prose has a holier-than-thou tone that conveys a not-so-subtle condescension toward anyone who doesn’t share those politics. I’m not suggesting Moskowitz should frame arguments to pander to white supremacists—there are unreasonable people in the world, and pursuing disagreement with them may be unproductive, even dangerous. But traditional conservatives, moderates, liberals, and even many fellow leftists/progressives/radicals will feel some of that condescension aimed at them. I certainly did.
Another limiting factor is Moskowitz’s unwillingness to acknowledge that the conservative critiques of “political correctness” on campuses have a kernel of truth to them. Universities are not run by leftists, of course, but largely by conservative-to-moderate administrators. Business schools, not exactly leftist hotbeds, are often one of the most well-funded units on campus. Economics departments overwhelmingly preach standard neoclassical ideology. And over decades, right-wing individuals and foundations have tried to use donations to mold universities and the political culture more generally. Moskowitz does a good job of pointing out all of this.
But it’s also true that on certain issues in certain departments (depending on the campus, that can be units such as sociology, literature, women’s studies, ethnic studies) there is an unwelcoming climate for students and faculty who want to challenge the liberal-to-left thinking that defines those fields. That doesn’t mean racism and sexism should be tolerated in the classrooms, only that philosophical and policy disagreements shouldn’t be shut down.
Both things are true and both are relevant.
My own experience at the University of Texas is illustrative, and not idiosyncratic. After 9/11, my writing and speaking in opposition to U.S. imperialism and the so-called “war on terror” put me in the crosshairs of conservatives in the state, and the UT administration eventually piled on (the university’s president condemned me by name in public but didn’t try to fire me, I assume because I had employment protection with tenure). I saw the chilling effect that the administration’s actions had on campus, as numerous students and faculty colleagues told me they didn’t speak up out of fear of putting their careers at risk. As a result, the whole state was denied the opportunity for its flagship university to be a center for vigorous debate about crucial policy decisions. Everyone loses.
A dozen years later, I began publishing articles that offered a feminist critique of the ideology of the transgender movement. This time I was in the crosshairs of liberals and fellow leftists/progressives/radicals who denounced me as a bigot and transphobe without providing any substantive critique of my writing. Again, I saw the chilling effect, as numerous students and faculty members told me they agreed with me but wouldn’t risk being shunned. Again, the whole state was denied listening to an important debate that could draw on the campus’ considerable intellectual resources. Everyone loses.
In neither case was I punished by a governmental agency. In neither case was my life seriously disrupted. In both cases I was called some unpleasant names and I lost some friends, but on the scale of suffering those things barely register. As a tenured professor who is white, male, and a U.S. citizen, I have enormous privilege. My point is that our collective political and intellectual lives are diminished by a lack of respect for critical thinking and freedom of speech.
The 9/11 experience demonstrates how an important conversation about the United States’ role in the world was undermined by jingoistic invocations of patriotism. The transgender example demonstrates how an important feminist tradition of challenging patriarchal gender norms is being undermined by claims that are being asserted but not adequately defined or defended. The cultural climate around speech matters, even when governments don’t take direct actions to suppress free speech.
To be clear: I am, and will remain, part of the left, broadly defined—critical of capitalism, imperialism, white supremacy, and patriarchy, with a recognition of the centrality of ecological sustainability to any meaningful politics. I think reckoning with all these systems of power is relevant to hashing out the rules by which we try to maximize free speech and expand the space for critical intellectual work. Given the threats posed by multiple, cascading ecological crises, at this point in human history we are, quite literally, arguing for our lives.
I am wary of state power and cautious about using public policy to proscribe speech, but I believe that a good case can be made for carefully constructed regulations that allow people to challenge hate speech and pornography. I also believe that public policy can be used to reduce the political advantages that come with wealth, as we struggle to transcend a socially unjust and ecologically unsustainable capitalist system.
But I also recognize that such policies are not easy to construct or enforce, that there can be unintended consequences to such policies, and that people of good faith can reach different conclusions. Even if my perspective on these questions were to prevail, I would want a vigorous debate to continue. The only question on which I see no room for debate is on the absolute right of all people to participate in the public conversation, based on the claim to basic human dignity and mutual respect. But how to guarantee that right and ensure that dignity and respect? If only that were simple to design.
Let me end with what may seem strange—an endorsement of Moskowitz’s anger, which I understand to be rooted in an awareness of how many people do not embrace human dignity and equal rights. I share that anger, which deepens as I get older. But while anger can be the motive force behind acting on one’s deeply held moral beliefs, the expression of anger is not itself a political or intellectual argument. As I get older, I am more aware of how righteous anger can so easily turn self-righteous.
Reasonable people can disagree, and I take both Moskowitz and myself to be reasonable. The Case against Free Speech is a flawed book, and I’m glad I read it. Both things are true, and therefore both are relevant.