Rationalism, Pluralism, and Fear in the Speech Debate

Rationalism, Pluralism, and Fear in the Speech Debate

There are many factors in a free society which conspire to make the public sphere an unseemly terrain. Citizen sovereignty increases the stakes of public persuasion by distributing voting power so broadly that personal persuasion alone cannot suffice to keep elected officials in office. Consumer sovereignty leaves political media constrained by the tastes of audiences, who display a remarkably consistent preference to have their politics provided as a genre of sports coverage. Both together create opportunities for individuals seeking either office or audience to do so by adversarial means.

A free media is a rancorous media. Some have deluded themselves that it might be otherwise, believing that the bland mid-century mass media might be, or become again, the norm. But even in the era of the big three networks, there were audiences for New York Post-style political bloodsport. Nostalgia for that bygone media environment forgets much of its rancor. Either way, that time is gone, an anomaly in media history rather than something we might aspire to again, given current technological realities.

The topic of our rancorous public sphere is itself the subject of a great deal of rancor. Central in this particular drama is the specific, recurrent debate over free speech in America, through the lens of what is called “cancel culture.” This one follows the cyclical rituals of political media more strictly than most; the same concerns are raised in the same way by more or less the same actors or outlets, prompting the same responses issued in the same way in previous outbreaks of hostility, also largely by the same actors and outlets. The matter fizzles for a time, until it is predictably reignited by some new media event or simply some new opinion article which breaks the fragile ceasefire.

Why so much rancor over rancor? It’s not just a matter of tone or civility, or of unpleasant rudeness. It’s not just the frustration of the criticized. Nor is it simply a matter of selectively supporting some speech over others—of believing in the freedom to say “you are wrong” but not the freedom to say “shut your mouth.” None of this gets at the heart of the matter.

For years one side has claimed that certain incidents were infringements of freedom of speech, of association, or even of rule of law. These incidents were less “shut your mouth” and more “fire this person immediately,” or, further, “join me in calling for this person to be fired.” They involve using speech to call for social sanctions, the manner of which can take many forms. A business can be boycotted, an employee—rather than facing termination—may be subject to an embarrassing internal investigation, or reprimand, or on the harsher end, demoted or transferred to a position with fewer prospects for career growth. Publishers can retract articles or papers, or terminate book deals. Brands can terminate sponsorship deals and advertisers can withdraw their buys. Invitations to events can be rescinded or never sent in the first place. Friendships can end. The very mechanisms which sustain and fulfill us in commercial and civil society, and indeed in private life, are also the very mechanisms that can be used to influence our actions—or simply to hurt us.

This of course is to cast it all in a negative light, but the entire problem is that it’s not possible to characterize these things as illiberal or immoral or even undesirable in general terms. Ending an abusive relationship isn’t immoral. Ending a friendship with someone who unpleasantly dominates all conversations with QAnon conspiracy theories is not illiberal. Firing an employee who pressures their direct reports to donate to particular political causes or campaigns is not undesirable. One side calls the demand for and delivering of social sanctions illiberal, or infringements of the liberty of the sanctioned, while others respond by pointing out, correctly, that freedom of speech, of association, and of contract, are all that has been exercised by the sanctioners in these cases.

There is no coherent formulation of rights which renders any of these illiberal. But there are coherent characterizations of the social system as a whole which can.

A tense balance

Jacob Levy describes John Stuart Mill’s vision of the liberal order as follows:

The idea that persons are free and equal does not categorically distinguish between state and non-state denials of freedom and equality. The moral interests protected by liberal freedom and equality must be defended against associations and groups as well as against the state: for example, racial discrimination by private employers and schools and in private housing markets can maintain a racial caste system, and the extension of civil rights norms into the private sphere has been a major liberal triumph. Liberty, no less than equality, demands protection against non-state actors.[1]

Levy refers to this as the theory of congruence, the idea that every aspect of liberal democracy must share the character of a proper liberal state. Ernest Gellner, in his discussion of civil society, also focused on the overall character of the system. He expressed dissatisfaction with the traditional definition of civil society as “that set of diverse non-governmental institutions which is strong enough to counterbalance the state and, while not preventing the state from fulfilling its role of keeper of the peace and arbitrator between major interests, can nevertheless prevent it from dominating and atomizing the rest of society.” Many examples from history which fit that definition imposed “a most demanding culture, one which modern man would find intolerably stifling.”[2]

He suggested that the civil society that we liberal democrats really desire and really have is “modular,” allowing “the forging of links which are effective even though they are flexible, specific, instrumental.”

Modular man is capable of combining into effective associations and institutions, without these being total, many-stranded, underwritten by ritual and made stable through being linked to a whole inside set of relationships, all of these being tied in with each other and so immobilized. He can combine into specific-purpose, ad hoc, limited association, without binding himself by some blood ritual. He can leave an association when he comes to disagree with its policy, without being open to an accusation of treason. (. . .)Yet these highly specific, unsanctified, instrumental, revocable links or bonds are effective! The associations of modular man can be effective without being rigid![3]

But this character is a sociological development that cannot simply be constructed to spec. And the congruence theory, on its own, is anyway unworkable, as Levy himself immediately notes:

[I]t does not make sense for the liberal state to tell churches that they must respect the religious freedom of their current and ongoing members in the sense that they must treat any or all religious beliefs as compatible with  membership, the way that the liberal state must treat any or all religious beliefs as compatible with citizenship. (. . .) A church that is unable to insist on adherence to its own religious tenets as a condition of membership is unable to be a church. (. . .)When the church calls the police to evict dissenters as trespassers, the state is not infringing on religious liberty; it is respecting the rights of the church qua property owner and thereby the  associational freedom of the church’s members.[4]

For simple logical reasons a liberal democracy cannot be congruent through and through, because to make it so would be an incongruence itself: to force churches to allow freedom of worship of any kind from its members and on its premises would be to effectively abolish freedom of worship and association at all, in practice.

The congruence theory is a reduction of the type of liberalism which Levy calls rationalism: the attempt to impose liberalism from a powerful center. Its opposite is pluralism, which Levy reduces to “the pure liberal theory of freedom of association.”

The pure theory holds that, what individual persons are free to do singly, they ought to be free to do in association with one another; and rights that they are free to waive, they ought to be free to waive as against groups of which they are members. (. . .)[P]ersons should be free to form any associations or institutions that they wish, to structure and govern them however they wish, and to live according to the rules and norms that the associations generate. Their freedom to create associations and institutions means that the associations and institutions then take on a moral and legal existence of their own, which in effect means that associations ought to have complete freedom to govern themselves by whatever procedures and rules they wish, and to admit or refuse whomever they wish.[5]

But this, too, “is not satisfactory.”

A world of pure freedom of association (. . .) could be a world in which one generation’s persons all give or bequeath their land to their associations, leaving no physical space outside the control of one or another group for their successors. That means that the succeeding generations might have, literally, no place to go if they wish to exit the groups into which they are born, no resources of space in which they could assemble their own dissident, hybrid, or rival associations.[6]

From a “pure theory” perspective, there is nothing wrong with firing someone for their political views or their religion. There is nothing wrong with a coworker, or even an outsider, calling for someone to be fired, or demoted, or publicly reprimanded. There is nothing wrong with a church’s leadership announcing before their congregation that they are investigating statements made—on any topic, in any setting—by one of the congregants. Outside of the realm of theory, things can, and have, gone much further than this:

In the early twentieth century, the Ford Motor Company established a Sociological Department, dedicated to inspecting employees’ homes unannounced, to ensure that they were leading orderly lives. Workers were eligible for Ford’s famous $5 daily wage only if they kept their homes clean, ate diets deemed healthy, abstained from drinking, used the bathtub appropriately, did not take in boarders, avoided spending too much on foreign relatives, and were assimilated to American cultural norms.[7]

The “pure theory” does not suffer from logical defects the way that congruence does, but instead suffers from all too easily producing an utterly illiberal system. For their part, the early liberals were not especially interested in pure logical consistency. Though they valued property rights very highly, they outlawed primogeniture and entail, the traditional English approach to inheritance.

A free, democratic, commercial society was thought of as more than simply a state that respected rights of various kinds. It was a society of a particular kind, one characterized by mobility, the rise and fall of elites based on achievement, and a certain fluidity. (. . .)[T]here is an important liberal argument against entail that is concerned (. . .)with the stagnating effect on society of a system that prevents the division, sale, and circulation of land.[8]

Neither congruence nor the “pure theory of free association” provide a formula by which we can arrive at a truly liberal democratic system. Indeed, no such formula is possible. Instead, “the organization of society is largely left to how people persuade one another and are persuaded to associate, transact, [and] contract[.]” The dynamism that is unleashed by liberty must then be checked by cautious liberals keeping the character of the overall system, as it develops and changes, in view. If it becomes too rigid, too stifling, too incongruent with the ideal of liberal democracy, we ought to consider what can be done to make it more accommodating, more flexible, and more modular. A completely congruent system is impossible, but piecemeal reforms towards congruence are essential.

This tense balance between pluralism and rationalism requires constant adjustment and readjustment. The process never ends, and some of the rationalist interventions may be quite historically contingent indeed. Will Wilkinson captures the spirit of this when he writes:

[T]here is no reason to think that it is possible or desirable to assign one and only [one] jurisdictional level to each type of public good or domain of regulation. Sometimes a good is best provided at a lower level, but providing it involves solving a collective action the lower-level jurisdiction can’t handle without a higher-level assist. Similarly, regulation at any level can be captured by special interests. Sometimes the best solution is to shift or share regulatory authority to/with a level of government that has not been captured.

Sometimes what seems like a good liberal idea in theory has, in practice, been exploited for illiberal ends. Rationalist interventions can be strategic, of course, implemented with a view to fostering a liberal democratic character over the long run. But they can also be quite tactical, as Wilkinson suggests.

Speech rationalism

From the perspective of Levy’s  “pure theory,” America has the most expansive free speech regime in the world. Elsewhere, rationalist interventions are enacted in order to create greater congruence in the exercise of speech and association. Hate speech laws, and banning certain types of illiberal or anti-democratic political parties, are the most typical examples. Though many who begin from the pure logic of rights consider these illiberal, Levy’s framework suggests we should not, at least in the abstract. They are clearly aimed at reducing social inequality and avoiding the takeover of the political system by totalitarians; in other words, they are rationalist attempts to keep the character of the system congruent with liberal values.

Now, I do not think that real world regimes that implement hate speech regulations in particular have a very good track record applying them in good faith or in a way that does more good than harm. In France, for example, they punished the comedian Dieudonne M’bala M’bala for making a joke about the terrorist attack on Charlie Hebdo, but had never punished, well, Charlie Hebdo in the years before the attack for its many jokes aimed at minorities. And while I think there’s merit to the Germans banning neo-Nazi parties, in general I think it is ill-advised to allow the parties in power to choose which of their potential rivals to take out of the running.

As Levy pointed out, it would be illiberal in the extreme to force a church to allow believers and nonbelievers alike to attend and speak as freely as they desire. To attempt to enforce bonds of friendship or personal closeness would be totalitarian, plain and simple. But regulating employment relations in order to make them more congruent is perfectly justifiable. And of course, much of the energy of “cancel culture” debates center on the threat of having your employment terminated because of something you have said or something you believe.

Here in America, we have protected classes against whom it is illegal for employers to discriminate. In Europe they extend protections of this kind to “religion or belief, political or any other opinion,” among others. Unlike America, they also do not have at-will employment, meaning that the employer has the burden of showing cause for termination, and it is illegal for “religion or belief, political or any other opinion” to be that cause. Ford’s paternalistic scheme is straightforwardly illegal in the European model.

The European approach to employment and belief-based discrimination could go a long way towards addressing worries over the politicization of the workplace. Of course, it would not go all the way, as nothing, in a free society, can. And if one is criticized or insulted by, and in front of, one’s coworkers in a way that one finds humiliating, especially if this is a regular occurrence, it can become psychologically difficult to stick with the job, even if your employer cannot fire you. Some speech of this kind could be construed as harassment, or creating a hostile work environment, and might therefore be legally actionable. But there’s a very high threshold of speech that could create psychological harms that would fall below what was legally actionable, or below what was certain enough to be legally actionable to consider engaging our expensive legal system.

Another concern of the “cancel culture” debate is that there has been a chilling effect, that fewer viewpoints can be expressed publicly than before. But here I believe pluralism has actually done its work. As Jamelle Bouie has noted, when Alexis de Tocqueville came to America in the 1830s, he found its public sphere profoundly conformist. The reason? Unlike the mixed constitutions of the old world, which provide multiple potential social perches from which to speak, America’s unmixed republic produced an intellectual monoculture:

There is no religious or political theory that cannot be preached freely in the constitutional states of Europe and that does not penetrate the others; for there is no country in Europe so subject to one single power that he who wants to speak the truth does not find support capable of assuring him against the consequences of his independence. If he has the misfortune to live under an absolute government, he often has the people for him; if he inhabits a free country, he can take shelter behind the royal authority if need be. The aristocratic fraction of the society sustains him in democratic regions, and the democracy in the others. But in the heart of a democracy organized as that of the United States, one encounters only one single power, a single element of force and success, and nothing outside it.[9]

Today, however, the combination of partisan polarization of media funding and audiences, on the one hand, crowdfunding platforms such as Patreon and Substack, on the other, and the enormous long tail of content, have all conspired to create more perspectives represented and accessible in public than ever before in history. Beyond these there is also access to the ideas expressed in the past, and also ideas being expressed today in other countries in which different political conditions currently apply.

The problem is not getting more points of view into the public sphere, for that has never been accomplished more effectively than it is today. I do not think that the now quite consistent findings that people feel less free to speak their minds can be dismissed, but I don’t think the end result has been a monoculture in the public sphere, because it does not take a large number of people in relative terms to produce an enormous array of views accessible to the public. I do think it suggests a problem with our current communicative environment that so many people feel on guard about what they can say.

I believe it is more likely that there were stricter boundaries around what one could say fifty or sixty years ago without serious social repercussions, but if many fewer people felt those boundaries as constraining, that is worth noting. And it’s worth thinking about what might be done to lower the overall pressure perceived by the typical person. I do think that an important part of what pushes this pressure up are the very articles, produced at an industrial scale, sounding the alarm about a speech crisis. This is exactly the sort of effect that has led some, such as myself, to question whether the coverage has been proportional to the problem. But I am not suggesting that disproportionate coverage is the sole or main explanation for the survey results, by any means.

Levy’s rationalism is chiefly focused on how strong central states can intervene to create a more liberal society. I do not think that the state provides the correct tools for addressing the feeling evoked by these surveys. But “rationalism” can be extended to include the use of any means to promote a society that is more congruent with liberal democratic ideals overall.

It is my belief that many of the troubles of our day—including concerns over how free people feel to express themselves—stem from the punitiveness of our culture. One of the means employed to improve the situation should therefore simply be persuasion.

For the rancorousness of our free press very often reflects the deepest desires of its audiences to inflict punishment upon evildoers. Hysterical front pages from Jack the Ripper to the Central Park Five stand in historical testimony to this persistent fact. The public sphere in a free society is the venue for the public to whip itself up into a frenzy, and in so doing, put pressure on agents of the state—police, prosecutors, and legislators. But it also puts pressure on employers, community leaders, business partners, and even friends. This pressure is not to solve some problem, to, say, more effectively fight crime or racism. Instead, it is a pressure to vent the public’s fears and visceral desires to inflict punishment upon the wicked.

I do not believe this can be done away with. It is far too persistent a feature of free media, and empowered rather than discouraged by 21st century developments in media technology and business. But I believe we can move it in a better direction, on the margins. And one way I think we can do this is by insisting that people take seriously the harms we visit upon one another, for good reasons and for bad, knowingly or not.

Liberty’s sharp edges

A 2020 Pew survey found a quarter of adult Americans experienced “severe” forms of online harassment, with eleven percent experiencing “sustained harassment.” Most alarming is the finding that nearly half of adults under 30 had experienced “severe” online harassment, with sixty-four percent experiencing online harassment of some kind. It’s hard to understand precisely what the respondents mean by some of these categories, but Pew did ask how upsetting the incidents were, with ten percent of all adults calling the incidents “extremely” upsetting and a further fourteen percent calling them “very” upsetting. Among women these numbers go up to fifteen and eighteen percent respectively, meaning fully a third of adult women have experienced online harassment that is either “extremely” or “very” upsetting.

Half of those who had been harassed believed that they were harassed because of their political views. These experiences alone may explain the results of the surveys discussed above in which Americans state they feel “less free to talk about politics” than they did in the past.

Pew’s “severe forms of online harassment” include “physical threats,” “stalking,” and “sexual harassment.” No one considers threatening to rape and murder people to be protected speech, much less the carrying out of the threat. But the dynamics of public speech aren’t so neat and tidy that we can leave these out of our account. An incisive but polished polemic which goes viral and draws enormous amounts of attention and ire onto its target runs the risk of creating a cascade—the sort of Internet stampede I assume all readers are quite familiar with. Even when the polemic is aimed at the most deserving of targets, even when it is very carefully written, even when the author specifically demands that the target not be subject to harassment—even if the lion’s share of the stampede is made up of messages that are perfectly civil—still, the end result may amount to overkill.

It takes very few death or rape threats to ruin one’s day, to put it lightly. Even if most of the messages on social media—or wherever they may be—make a defensible criticism in respectable language, if a few such threats get swept into the mix, it will very likely color how the person experiencing it views the entire incident. And even without threats, one merited criticism is experienced very differently than one hundred, or one thousand, all arriving within a matter of hours or even minutes.

Moving beyond our hypothetical respectful polemic with its by and large respectful social media follow ups, in the real world the lion’s share of messages will not be as nice as all that. Pew’s two “less severe forms” of online harassment are “offensive name-calling” and “purposeful embarrassment.” In small doses it may seem silly to mention these things at all, but even those with the thickest of skins can stagger under the weight of dozens or hundreds of people characterizing you in the worst terms imaginable and actively seeking to show how simultaneously idiotic, pathetic, and evil you are. Even if the typical such incident isn’t an unbearable burden, we can surely agree, as fellow human beings, that it likely does not feel wonderful, and can leave a person shell-shocked, heightening any anxieties or insecurities they already have or even creating new ones.

Consider, also, anecdotes recounted, by Anne Applebaum, in her essay about high status individuals occupying prestigious positions who were subjected to the wrath of “The New Puritans.” It is easy enough to dismiss these as the troubles of the well to do, but she mentions in passing that some among them experienced suicidal ideation, and in one case, even committed suicide. I don’t think, as a fellow human being, this is something that should simply be brushed off.

It’s quite possible their privileged lives left them more vulnerable to this outcome. Consider In The Journal of the American Academy of Psychiatry and the Law, Walter J. Torres and Raymond M. Bergner explain:

[A]n individual suffers humiliation when he makes a bid or claim to a certain social status, has this bid or claim fail publicly, and has it fail at the hands of another person or persons who have the status necessary to reject the claim. Finally, what is denied is not only the status claim itself, but also and more fundamentally the individual’s very status to have made such a claim at all.

Whether the incidents that Applebaum and others like her have recounted involved temporary or permanent setbacks, they were no doubt perceived by the individuals in question as, to use Torres and Bergner’s words, “a literal de-grading, entailing a significant loss of status that had been, up until then, successfully claimed and acted on and thus a loss of the individual’s range of behavioral eligibilities in some community or communities.”

The consequences of such de-grading, felt to be “severely humiliating treatment” by the individuals undergoing it, can be quite extreme; “Suffering severe humiliation has been shown empirically to plunge individuals into major depressions, suicidal states, and severe anxiety states, including ones characteristic of posttraumatic stress disorder.”

I think there is a strong argument to be made that high status occupations and prestigious institutions, together with their intensely competitive pipelines, both create a higher risk environment and select for a higher risk type of person, when it comes to experiencing setbacks as a harm. The tenured professor’s rivals who sought the same position, and had the same life trajectory of always succeeding in the ambitious goals they had set out to accomplish, might very well experience similar harms simply from having failed to obtain that position.

To accept this, we do not need to believe that anyone is owed a prestigious position, or even that it is wrong to publicly criticize them and actively work to remove them from that position. No doubt a politician or police officer who was taking bribes would be at similar risk for psychological harm if their crimes were exposed to the public; that is no argument against exposing those crimes.

All I wish to emphasize, for now, is that these harms are real, and just as we wouldn’t doubt that people far removed from positions of social power are full human beings capable of being hurt, we ought not to doubt it of Applebaum’s subjects and their peers either. And of course, bullying and its psychological consequences are present at every level of the social hierarchy. This need not involve physical intimidation to cause harm; verbal abuse, especially when perpetuated in groups rather than by lone bullies, is quite capable of driving people to suicidal ideation.

No one defends verbal abuse as a category, but it stands in uncomfortable relation to freedom of speech. Verbal abuse alone is not necessarily a crime in this country. It may in some instances be construed as harassment, which is a crime, but the legal waters can be quite murky here. In practice, the boundaries between frivolous insults and verbal abuse are more ambiguous than we might like.

Let us now consider the harms that can be brought about through the exercise of other liberties. Freedom of association and contract allow people to band together for comfort, companionship, and to coordinate group action. It also allows people to enter into employment relations in order to provide something for sale and thereby to pay for the livelihood of employees and business owners alike. In short, these freedoms allow people to work together to fulfill their material, moral, and emotional needs, by entering into relations of mutual support and mutual dependence. But dependence is coterminous with vulnerability, and the types of punishments that association and contract make possible are far more severe than verbal abuse alone.

I have discussed how at-will employment might be reformed, but for the time being, that is the model that Americans live under. And under that model, what keeps most people in their jobs most of the time is more the lack of a reason to let them go, rather than a positive reason to keep them, specifically, on board. There are switching costs associated with finding a replacement and getting them ramped up—costs that, as I write this, are higher than they have ever been in my lifetime—but this important friction aside, the difficulty of objectively measuring employee performance leaves a great deal up to perceptions, which can be quite slippery and vulnerable to suggestion. This is most acute in white collar or “knowledge economy” settings where objective outputs are few and such outputs as exist are produced by teams, for which it can be quite impossible to determine individual contribution with precision. In the ordinary course of business, simply making a bad impression on the wrong person can set you on an uphill battle to maintain your position, never mind grow your career within the firm.

Under these conditions, if someone wants to make trouble for you for reasons entirely orthogonal to your job performance, it is not that difficult. We ought not to dismiss the threat that even a single social media user can pose to someone’s position with their current employer, any more than we should dismiss the impact of a single social media user’s threats of violence. It would not take a great deal of negative attention for management to begin to judge an employee’s perceived PR liabilities as exceeding the cost of replacing them.

But risk analysis aside, we ought not to underrate the psychological stress of having people publicly calling for you to lose your job, or even for termination to be considered. The impact of reprimands and internal investigations ought not to be dismissed either. Both could be considered a form of public shaming, whether they are done before the broader public or simply before one’s coworkers. And the precarious nature of perceptions within an organization are such that raising the possibility that someone is a problem makes it sharply more likely people will consider them one regardless of the outcome of an investigation.

No one is owed a good reputation, and it falls to all of us to do the best we can to manage our own, and to stand up for others we feel are being wrongfully condemned. My point is not that criticism, reprimands, investigations, and termination are never warranted. My point is simply that we should be clear eyed about the harms they can produce, whether the actions that produce them are warranted or not. Too often, law and order conservatives are willing to dismiss the harms suffered by those put in contact with our criminal justice system, simply because some of those people turn out to have been correctly suspected of committing serious crimes. If liberals can recognize that the perpetrators of violent crimes are human beings whose dignity and safety is still worth caring about, surely we can extend this insight to racist or insensitive coworkers. Even when we agree the punishment—whether jail time or termination of employment—fits the offense, we ought not to give in to the temptation to dehumanize the punished.

Feeling anxiety over losing one’s job is hardly irrational, even among the relatively affluent and successful. No one can tell you how long it will take for you to find a new job, and therefore how long you will be drawing down whatever cash you were able to set aside before that point. Even if getting stuck in long term unemployment is unlikely for a given person, it is much more likely when you are already unemployed to begin with. And of course, with the increased chance of long term unemployment comes the other risks that increase with that; being unable to afford basics such as food, shelter, or medical care.

Even if we move beyond employment, where the potential harms are more obvious, other voluntary associations create vulnerabilities as well. To be stripped of membership, or even simply to be humiliated in front of other members, are perfect examples of Torres and Bergner’s “de-grading,” with the potential for the same sorts of psychological harms.

One can believe, as I do, that liberty “is a central pillar of a liberal society,” that it “is the beating heart of the dynamism of liberal societies,” and also believe that its edges can be very sharp, and cause real harm.

We might be better off if more people, before participating in their punitive desires or collective calls for blood, took a moment to consider the human cost of such personal indulgences. Even if punishment is merited, even if we think it is important, we need not revel in it. It is the reveling, the indulgence, actively encouraged by the culture of our public sphere, which I believe leads to excesses. If more people take these harms seriously, perhaps they will feel that they ought, before jumping on some media event bandwagon, to put in the proper time to understand what is known and with what certainty, and the substance of it—or not, and simply leave well enough alone. Perhaps some will try speaking with HR or a manager first, rather than jumping as a first approach to gathering coworker signatures on a public petition to discipline or fire one of their colleagues.

These are the kinds of considerations that we ought to encourage as a matter of cultural and individual ethic. It’s no cure-all, and there’s no mechanism by which we guarantee such cultural changes will get adopted in the first place. But for those with an interest in this topic seeking to make a difference through persuasion, this is the route I would suggest.

The speech debate, clarified

While I don’t think the matter has been empirically settled by any means, I don’t believe that the challenges of speech in America—even including the red state anti-CRT bills—are anywhere near the greatest problem in American society. The scale of abuse, humiliation, and violence on display in immigration enforcement, child protective services, and the criminal justice system are difficult to measure up against in this respect.

Nevertheless, a smaller problem is still a problem, and there is merit in trying to understand it. Many conservatives in the Cold War pointed to the real horrors of communism abroad in order to distract from the equally real horrors of Jim Crow at home, to say nothing of many problems that were smaller but worth talking about. When the chances of open nuclear warfare have increased, as it undoubtedly has today due to Russia’s war on Ukraine, it becomes rather difficult for any other problem, no matter how widespread or severe, to measure up. That does not mean we ought to ignore those problems.

The role of public and private constraints on and penalties against speech is a topic of central concern in the liberal tradition. Given that our cycle of re-litigating these questions by recourse to the same talking points over and over seems nowhere near an end, we ought at least to try to improve that conversation.

In the above, I set out to do just that, first by providing a model for thinking about the interplay between individual liberty and the character of the social system overall, and second by encouraging people to take the harms associated with cultural punitiveness more seriously.

[1] Jacob T. Levy, Rationalism, Pluralism, and Freedom (Oxford, United Kingdom: Oxford University Press, 2015), 52.

[2] Ernest Gellner, Conditions of Liberty: Civil Society and Its Rivals (London: Penguin Books, 1996), 5-8.

[3] Ibid. 99-100.

[4] Jacob T. Levy, Rationalism, Pluralism, and Freedom (Oxford, United Kingdom: Oxford University Press, 2015), 53.

[5] Jacob T. Levy, Rationalism, Pluralism, and Freedom (Oxford, United Kingdom: Oxford University Press, 2015), 42-43.

[6] Ibid. 47

[7] Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It) (Princeton, NJ: Princeton University Press, 2019), 48-49.

[8] Jacob T. Levy, The Multiculturalism of Fear (Oxford: Oxford Univ. Press, 2004), 209.

[9] Alexis de Tocqueville, Democracy in America, trans. Harvey Claflin Mansfield and Delba Winthrop (Chicago, IL: University of Chicago Press, 2012), 244.

Featured Image is The fin de siècle newspaper proprietor, by F. Opper