The Case Against Free Speech

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Consider the following situation: an art film portrays an act of sexual brutality in a non-judgmental way, portraying it ‘in all its complexity.’ I think we find this idea objectionable.

In small and informal ways, we are all in the position of protesting various speech acts everyday.

No one finds every conversation equally productive. This is an unavoidable fact of being a social animal. What we take to be worthwhile discourse and what what we take to be a waste of time or outright detrimental is a determination that we make on a daily basis. Although we may be reluctant to formally curtail speech we dislike in favor of recognizing a right on the part of a speaker, I would argue that even staunch supporters of the freedom of speech might find occasions to want some speech curtailed.

Director Kathryn Bigelow’s film Zero Dark Thirty can provide an example of what we might judge as reckless discourse. This film was hailed as ground-breaking in its uncommonly graphic depiction of how the United States government handles interrogating prisoners in pursuit of acquiring pivotal intelligence in the fight against terrorism.

Imagine if a film critic were to promote the film by arguing: “Instead of letting our knee-jerk modern moral sentiments judge the controversial tactics that our government uses in ‘enhanced interrogation’ practices, Zero Dark Thirty portrays torture in all its complexity for audiences.”

This statement may seem, at first, to be an appealing promotion of the film and its merits. But, consider the following situation: an art film portrays an act of sexual brutality in a non-judgmental way, portraying it ‘in all its complexity.’ I think we find this objectionable. Along the same lines, we can take up whether we find the idea of being totally non-judgemental about torture to be similarly uncomfortable.

In the above thought-experiment we can see that we may find some speech worth curtailing, even if this speech is curtailed through boycott rather than through restrictions by law.

If this starting-point is, at all, compelling, we can begin to understand the position of those who advocate for shutting-down some types of speech.

The recent violent protests at Berkeley have become a hotbed of controversy and discussion. What may have been intended by some as a peaceable (even if loudly intervening) collective objection to the controversial presentations of Milo Yiannopoulis, was steered by many students into materially destructive and violent attacks on other people. Far and wide, statistics indicate that violence has been on the downswing for many decades in the United States. It may seem to many Americans that political violence is a relic of a more fiery past age in this nation’s history. Today, the ethics of “punching Nazis” are floated around social media, even if most people don’t engage in violent behavior themselves. The question I want to ask is: when does the desire to curtail speech arise, and how do we determine how such speech might be limited?

Some object to the idea that any type of speech ought to be limited. But, as was considered at the opening of this article, not only we do we sometimes censor ourselves, but we also choose intentionally to disengage with some speech of others, blocking our attention from it or even going so far as to object  to its production entirely. Thus, in small and informal ways, we are all in the position of protesting speech acts everyday. The relevant question here is: when and how do we determine how far to go in speech we limit.

As we consider this question, it may help to turn to a piece of famous commentary on speech suppression. In Schenck v. United States, a case concerning enforcement of the Espionage Act of 1917, Oliver Wendell Holmes, Jr argued:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about substantive evils”

I imagine most of us find curtailment of the constitutional right to free speech in this case to be in principle a good idea, even if we think such curtailment could have the potential to go too far.

You may have a different formulation, but I think the idea that some speech can create danger is a pretty formidable guide in determining when to support the limitation of speech. Does this constitute a case for censorship? Legal censorship through the institution of government is one kind of limitation, and it has not been argued here that this kind of limitation is particularly justified, nor is it clear that this kind is the most desirable even when we do have an occasion to want speech limited. What has been argued is that we have a guide for determining when we should limit speech.

The take-away is: using danger as a guide is a compelling means to determine when we should support limiting free speech. We considered how films, for example, can create a recklessly non-judgmental cultural atmosphere around reprehensible acts. Through examining extreme cases, we can discover whether we find grounds to reject the position of those who claim that free speech ought to be protected regardless of the costs.


Cameron Peltz is a recent graduate of the University of Chicago with a master’s degree in public policy. He holds a bachelor’s degree from St. John’s College.

Editor’s Note: Merion West’s previous coverage of the free speech debate has sided unequivocally with a broad interpretation of the First Amendment. Cameron Peltz has worked at the Foundation for Individual Rights in Education (FIRE) on issues of civil liberties on college campuses, and he provides a more truncated view of free speech. He suggests there are occasions that warrant restrictions on the extent of this right.

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