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Why free speech is more complicated than Elon Musk makes out

Unthinkable: Familiarising ourselves with different arguments on whether to regulate speech can help us to find a compromise

Elon Musk may never have read John Stuart Mill but he is, in some respects, a modern inheritor of the philosopher’s famous stance on free speech. In his essay On Liberty (1859), Mill argues that it is better to have despicable opinions circulating in society than to try to outlaw them. Or as Musk put it, as he fired those in charge of regulating Twitter last week, “the bird is freed”.

Discussing free speech has become polarising in itself. Positions appear to have become wrapped up in broader political identities — the libertarians versus the woke, albeit that language is itself contentious.

Can the arguments be unpacked from the ideologies? Today’s Unthinkable seeks to do just that in a spirit of trying to find common ground.

Arguments for free speech:

1. Even bad speech is good: Musk says he doesn’t support a “free-for-all hellscape” and Mill was of a similar view. The English political theorist believed certain speech should be curtailed — for instance inciting a mob to violence. But beyond such extreme conditions, pretty much everything should be allowed.


Why? Partly out of intellectual humility: Mill believed to suppress any opinion is to assume you are infallible. And partly for society’s benefit: He believed testing mistaken opinions in the public sphere was how we improved our collective reasoning.

2. There are no human rights without freedom of speech: This argument is associated with legal scholar Eric Heinze, who was previously interviewed for this column. In brief, he says, there can be no such thing as a right unless there is a freedom to claim it or argue for it. If you believe in human rights at all you must, therefore, give freedom of speech special protection.

3. Free speech separates us from despots and extremists: Practical considerations are important. By criminalising types of speech we are arguably giving succour to those trying to assassinate Salman Rushdie because their feelings were supposedly hurt. Aside from the worrying signal it sends to authoritarian regimes, penalising free expression compels good-natured libertarians to support crackpots. Idiotic views best ignored can develop a martyred status.

Arguments for regulating speech:

1. Hurting the feelings of others is a form of harm: Enlightenment philosophers drew a clear distinction between causing offence and actual harm. Religious superstition should be ridiculed, irrespective of people’s feelings, they argued, because that is how we make intellectual progress.

As church authority declined, however, a strange thing happened: feelings became the new way of calculating whether something was right or wrong. The historian Yuval Noah Harari has written about this transition. Without God, faith in both objective truth and universal moral rules has all but disappeared. In its place, we have secular humanism which, Harari says, “has taught us that something can be bad only if it causes somebody to feel bad”.

Will a new hate speech law impinge on free speech?

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2. The issue is not whether to regulate but how much: In The Case Against Free Speech, American legal scholar Brian Leiter points out that democracies rely on regulating speech in various settings – in schools and courts, for example. Writing against the backdrop of Donald Trump’s election as US president on a wave of lies and fearmongering, he says: “It is long past time to abandon the implausible idea that ‘free speech’ simpliciter is an obvious force for further enlightenment and human well-being.”

Publishing details of planned new legislation on hate speech last week, Minister for Justice Helen McEntee said it would include a provision “to further protect genuine freedom of expression”. Whether the Bill strikes the right balance will be debated in the Oireachtas but, according to Leiter, there is nothing inherently wrong with this kind of state intervention. Yes, you need a trusted body to adjudicate on cases but “many democratic societies, with robust free speech cultures, from Germany to Canada to Australia, employ such arbiters”.

3. Free speech is itself the problem: Arguably, Mill and Musk have the sort of rose-tinted view of deregulated speech that only privileged white men could enjoy. People from disadvantaged backgrounds, those encountering everyday discrimination and women, minorities and other folk at the sharp edge of online harassment may be less convinced that freedom of expression is a force for good.

Even privileged white men, this correspondent included, can see how global inequalities make “free speech” today a fraud. The freedom of Rupert Murdoch or Big Tech to push their agendas on the world is an extension of their power.

Cambridge-based philosopher Rae Langton is to the fore in developing this thought, arguing that speech should be seen as an act that requires certain resources to perform. Some speech acts are used to silence the speech acts of others by depriving them of their intended force. For instance, misinformation from oil companies is used to undermine climate science. From this perspective, Langton argues, not all speech acts deserve protection.

Is there a way of navigating a path that takes all these arguments on board? Or is free speech set to become one those topics defined by an irreconcilable standoff, with no hope of a meeting of minds?

One way of looking at it is this: At the heart of Mill’s argument is an unrealistic picture of how public debate is conducted. People are not sitting around carefully assessing other people’s opinions. It would be more accurate to say they are talking past one another, without listening, and they are using channels of communication as a weapon.

But public debate is not entirely that — and there is a danger of assuming the most objectionable uses of speech are representative of the whole. It would be fatal to democracy to give up hope on the prospect of civil or constructive dialogue between people with diametrically opposed views.

One’s individual stance on regulation may have more to do with one’s life experience than we are willing to give credit. However, there is scope for compromise and that starts with familiarising ourselves with the different arguments surrounding free speech (only a flavour of which is given here).

In the absence of agreement, moreover, there is a working principle to which we can all sign up voluntarily: Listen respectfully when challenged and be conscious of the potential your words have to either help or harm others.

Ask a sage

Do we give away our speech too cheaply?

American political activist Barbara Ehrenreich (1941-2022) replies: “We who officially value freedom of speech above life itself seem to have nothing to talk about but the weather.”