Against the Social Concept of Free Speech
In Twitter-fueled free speech discussions, I often remind my interlocutors of the distinction between a legal, constitutional conception of free speech and a colloquial, social one. As a legal and constitutional concept, freedom of speech is concerned with the relationship between individuals’ expression and the power of the state as it is asserted through its various institutions. One of the test questions that the Supreme Court of Canada asks to decide whether something falls under freedom of expression is: Does the law or government action at issue restrict freedom of expression? In other words, that restricting effects on freedom of expression emanate from the laws and actions of government is one of the definitional aspects that helps us decide whether something is or is not a free speech issue in its constitutional meaning.
In some situations, the institutions whose actions can thus be scrutinized also include universities—in Canada freedom of speech applies to universities only in a limited way but in the US it pertains more broadly through a (in my view, problematic) linkage between academic freedom and freedom of speech. Protection of the constitutional principle of free speech aims to curtail imposition of state power onto public expression. This conception of freedom of speech is centrally important to a pluralistic and democratic functioning of society — it protects public expression, reporting, and criticism that governments might wish to suppress or punish. It has an extensive set of legal texts to rely on for its definition and application.
As a social and casual concept, free speech is a phrase that can be sprinkled into any conversation about any kind of speech not restricted to the relationship between the state and those on whose speech the state infringes. For instance, my children have used it against me when I have asked them to stop speaking. “I have free speech!,” they have said to me. The social concept of free speech receives very little definitional discussion and it can easily be replaced with a variety of other terms. Instead of “but free speech!,” we might also say these instances are about desiring to be listened to, wanting to be called into a conversation, demanding a platform, getting published, finding a forum for one’s ideas, getting a chance to voice disagreement, and also experiencing disruption, being barred from a forum, getting shouted down, or being told to shut up. “But free speech!” in social contexts is used to gain entrance into exchanges and conversations or, as the case may be, to evade unpleasant exclusionary effects that may be the result of one’s prior speech or action. If we accept the social meanings of the term and consider using that as a serious concept, then this broadness means there is hardly a way to disagree with the application of “but free speech!” in various settings. It fits everywhere where speech is involved.
The only way we can really question the use of the term in its casual meaning is by pointing out when it doesn’t coincide with its constitutional counterpart and so has no legal purchase. The use of the social term confuses the legal issues, a situation which in most everyday speech (or, far away from legal or disciplinary sanctions) may not be of much concern. I am sympathetic to this desire for gaining entrance into conversations and fora. Yes, someone may wish to make space for certain kinds of expression with an appeal to “free speech!,” but we are not legally compelled to grant that space and we can forward reasons for such refusal. In the effort not to police people’s expansive use of words, I usually limit myself to issuing reminders about the distinction between the two uses of the term, highlighting when a discussion of free speech does or doesn’t seem to fall under the constitutional meaning of the concept. I could simply keep going with this strategy.
But!
Persistent application of the term “free speech” in social settings has as one of its effects that the idea of legal and government power is introduced where it does not belong. In the case of my children reprimanding me such a shift hardly matters — as best as I can manage, they are able to guide my conversational turns by way of their own authority, not by summoning the force of the law. The shift toward state power becomes a concern where the institutional authority that is involved is in closer proximity to the state than I am as a parent. This can include the authority of administrators in university settings, in the US more so than in Canada. In such cases, appeals to a constitutionally-backed concept of free speech often demand the use of institutional power in limiting dissenting speech, curtailing protest, and preventing heckling. Now, these practices may be restricted for good reasons; the constitutional right to free speech does not have to be one of them. But the invocation of “free speech!” carries significant rhetorical power even where it is misapplied.
A widespread use of the social concept of free speech invites a particular idea of legal force and institutional authority into settings that would otherwise be governed by social or professional habits and their negotiation for the situation at hand. Take the governmental imposition of a free speech policy requirement onto universities and colleges in Ontario and Alberta. Why are these provincial governments — the very entities that are to be kept in check by the constitutional concept of free speech — diagnosing willy-nilly and without evidence that there is a “free speech crisis” on local campuses that they must address by government mandate? This incursion is bringing social and professional practices of speech — how people talk to each other at university events and what pressure of dissent they assert— under the extended arm of government. The Ontario government now requires universities— by threat of financial punishment — to adhere to a particular, US-created free speech concept and to provide annual reports of their adherence to this concept.
In the recent case of Judge Kyle Duncan’s speech for the Federalist Society at Stanford University Law School, we also see the ongoing effort of imposing a constitutional concept of free speech on social and professional speech. It is concerning that the dean of the law school, Jenny Martinez, asserted in a letter to members of the school that “staff members who should have enforced university policies [of no disruption] failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.” Martinez’ reasoning implies that any law school staff member who attends any university event, no matter by whom it is organized, must act as an on-the-ground policing officer of the no-disruption clause in the university’s free speech policy. John K. Wilson illustrates the problems with this extension of administrative power by asking: “What happens when five administrators attend an event, and they disagree about what the university rules say?”
I’m being a bit provocative when I say in the title that I am against the social conception of free speech. In many situations, that kind of broad use of the term is fine. When it comes to university campuses, however, the persistent use of the social concept in proximity to legal questions has the effect of undermining freedom in our interactions. Why should Tirien Steinbach not have calmed the protestors in the way that she did? Why should students at George Mason University not use their voices in protesting the choice of Glenn Youngkin, the sitting governor, as their commencement speaker? And why should criticism of either involve the rhetorical and legal hammer that they are threatening the exercise of freedom of speech of — in these cases, of all people! — a sitting judge of the US Court of Appeals and the reigning state governor?
