My good friend Robert Miller loosed a critique here at Public Discourse of my recent piece in the Claremont Review of Books, The Conservatives and Free Speech, a piece that posted this alarm: that even the conservative justices on the Supreme Court had now fallen in thoroughly with the currents of age—that they had now backed themselves into a position of moral relativism on the laws governing “speech” and expression. Miller does not so much disagree with that assessment, but he has serious reservations about the jural scheme I’ve offered in coping with the problem. The argument I’ve offered, not for the first time, was drawn from precedents and teachings settled quite early in the law. I’ve argued that it offers the advantage of countering the gravest abuses of the “freedom of speech,” while still preserving a “robust arena” of speech and discourse on the most contentious moral questions in our politics. I know that my friend is animated here to find the most tenable argument on the question at hand. In this case, I don’t think he quite makes it.
The case that launched these essays was Matal v. Tam, decided by the Supreme Court last year. The case involved the question whether the Patent and Trademark Office could deny, to an Asian rock band, the freedom to call itself “The Slants.” The PTO held that “Slants” was a derogatory term, inspired by the slanted eyes imputed to Asians. It reached that judgment even though the name was chosen by the band itself as a way of removing the sting of the term through self-mocking. The PTO probably made a mistake here, measured by standards long known. That mistake could have been easily corrected. There was no need for the Supreme Court even to take the case, or to overturn the judgment of the PTO with an opinion—and a rule—so astounding. For the judges took the doctrine of free speech to another level by drawing on an older case and declaring that the decision “offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”
Forty years ago, when a group of Nazis sought to parade through a Jewish neighborhood, David Hamlin of the ACLU declared that “the First Amendment protects all ideas—popular or despised, good or bad.” To be “despised” meant: to be unpopular. What was ruled out was the possibility that certain kinds of speech could be in principle despicable. And now the conservatives on the Court have embraced the ACLU position, for they have ruled out the notion that certain kinds of expressions may be “offensive” in point of principle. I can’t believe that Miller has come to share this judgment that “offensiveness” is wholly a subjective matter—that there are no things said that may be despicable in themselves, in the substance of what they express—so our disagreement must turn to the matter of what may be done defensibly and prudently by the law in dealing with that problem.
There had been no need for a judgment by the Court so sweeping in its dismissal of any grounds for making discriminations in judging acts of speech and expression. For the precedents of the Court offered a method of dealing with the problem through a commonsense understanding of the way that words are used in ordinary language. In the classic case of Chaplinsky v. New Hampshire, Justice Murphy noted that certain well-defined and narrowly focused classes of speech have never been given protection under the Constitution: “These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” [my italics].
That sense of things reflected the understanding long settled in the law that an “assault” did not strictly require the laying on of hands: one could hold an unloaded gun near someone’s head and pull the trigger. There were expressive gestures, accomplished with words and acts, that would be understood instantly as menacing: phone calls or letters meant simply to scare or terrorize, or the burning of a cross outside the home of a black family. That is why a “verbal assault” could be understood as an “assault” every bit as much as any act that involved physical injuries.
Ordinary people, used to living with ordinary language, had no trouble in recognizing at any moment those words and gestures that were established in our conventions as terms of “insult” or attack. Truck drivers and construction workers may have as keen a sense as lawyers about the gestures and words that insult or show disrespect. They know the difference between the N-word, or F***, as opposed to words such as “urologist” or “dentist,” which may also set off tremors for some people.
It was Justice Murphy’s insight also that words and gestures of this kind could be banned without interfering with the freedom of people to pursue all of the legitimate uses of speech. And so Mr. Rosenfeld, arguing at a PTA meeting in New Jersey, was asked to restrain himself because his only adjective, freely used, was “motherf****ing.” Asking Rosenfeld to restrain himself from the use of that word would not have diminished his freedom to make the most substantive critique of the school board. In the same way, it was possible to restrain a group of self-styled Nazis from brandishing their banners in neighborhoods in Skokie, a community containing Jews who survived the holocaust—and yet still leave Hitler and his descendants free to publish Mein Kampf and their racial tracts.
It was also understood that “context” is always critical. And so Justice Murphy wrote of those words spoken “without a disarming smile.” Anyone of minimal sense could tell the difference between those Nazis trying to provoke the residents of Skokie—and the Nazis on stage, singing “Springtime for Hitler,” in The Producers.
As I’ve made clear in my own writings going back forty years (and restated in The Philosopher in the City ), we can take some useful precautions against errors of judgment by putting any question to a jury in a libertarian cast: We presume in favor of the freedom to speak, as we would presume in favor of any other freedom. If there are any words on the borderline of derision and neutrality we can work with the presumption of letting them go. The jury should be encouraged to convict, or the judge to decide, only when the words or expressions would be recognized unambiguously, in the conventions of the place and time, as terms of assault and derision. I offered in my piece this chain of words, arguing that ordinary people would have no trouble in picking out the terms that stand clearly as terms of insult: (1) kike (2) wop (3) nigger, (4) urologist, (5) meter maid, (6) saint. I find it revealing that, as Robert Miller recalled the list, he gently left out the N-word. Could that reflect his own sure sense that this was not a term that should be used readily in public?
Miller offered the example of “meter maid” as a term that could be considered a term of insult. If he had followed my argument, he would have seen that his question answered itself. If it were really a matter of doubt, then the operating rule would clearly be: Let it go, don’t slap the speaker with a fine or penalty. But the jury, composed of ordinary folk drawn from the community, may be the best one to tell us whether words like “meter maid” or “plagiarist” are inflammatory words in any place.
Miller apparently thought he was offering a contrast to my own approach when he offered the example of trials for murder. “When it comes to enforcing [the laws on murder], however, we do not punish everyone who commits a murder. On the contrary, we punish only those people whom the state can prove beyond a reasonable doubt committed a murder.” But it should be clear that my own approach, on matters less than lethal, put a comparable or even heavier burden of proof on the prosecution. On this matter, Miller and I seem to be, as the saying goes, “in heated agreement.” I’ve relied over the years on Aquinas on this point: that it may be enough for the law to pick out certain clear cases for the sake of teaching a lesson. It was neither practicable nor desirable that we have powers of law capable of extirpating all evils. It may be quite enough to compress evils or wrongs to a level that makes them at least more tolerable. If Miller is concerned with prosecutions uncontained, freed from any sense of prudent restraint, his quarrel is not with me or with the scheme I’ve been favoring all these years.
My summary then: lawyers and law students, as well as truck drivers and construction workers, have not the least trouble in making the kinds of discriminations that Robert Miller seems to regard now as problems fit for metaphysics, too baffling for doctors of law, let alone ordinary folk.
One of his principal concerns, of course, and not alone with this issue, has been the dangers of error in wielding the powers of law. But in the nature of things, as we readily grasp, even the best and most defensible of laws can wind up visiting punishments on the innocent. Which is one reason that libertarians prefer fewer laws. And on that point I quite agree with them; I too would have fewer laws. But if there is a compelling case to justify a law in the first place, the mistakes will have to be borne, mitigated, we hope, by the correction of appeals. If we waived entirely the possibility of capital punishment, it would be ever clearer that murders must be prosecuted and punished, though mistakes will surely come.
For Miller, the dread of mistakes is deepened by the notion of mistakes made by the government, wielding those powers of law. But he surely knows that some of the worst suppressions of speech these days come in the illiberalism of the academy, with private thugs intimidating the presidents of private colleges. Those repressions of speech, in private institutions, stand well outside the protections of the First Amendment. But the doctrines developed by the Supreme Court may be taken as principles that teach lessons even to private colleges. It is clear that some conservatives think they can protect conservative students on the campuses by teaching a new doctrine that denies any moral ground for the restriction of any kind of speech. But as M. Stanton Evans used to say, the problem of pragmatism is that it doesn’t work. My friends are seeking their safety by offering a doctrine for protecting all speech without making any judgments on the content of the speech.
My hunch is that no move of that kind will pacify the Left on the campuses and buy safety for the conservatives. At the same time, the conservatives, in throwing over any moral ground for the governance of speech, have forgone any moral defense of their own defense of speech. If it is all a matter of opinion and preference, then this conservative defense of free speech may be dismissed as just one more opinion, which must yield to the force of the local majority in arms, charged with moral passion.
In drawing on the older teaching of the courts, I’ve argued that it is far more tenable for the Court to teach again, with Justice Murphy, the difference between epithets and arguments: I can protect my gay friends from gay-bashing and epithets—I can fend off the resort to wounding words—while at the same time I can preserve my freedom to explore the serious reservations that may be offered about the homosexual life and gay rights.
But of course the grave problem right now on the campuses—and in our politics—is that the willingness even to make an argument is taken itself as a sign of bigotry. Robert Miller does not think that the distinction between epithets and arguments will carry the day. But if we have a public discourse that no longer recognizes or respects the difference between calling names and making arguments, then that is a sure enough sign that there is no longer any “public discourse.” Shouting slogans at one another cannot be the same as giving reasons. And if that is a lesson that a Supreme Court cannot teach any longer to the country, if it, too, no longer recognizes that there are reasons and arguments to be weighed, then what has “judging” itself become?
This argument over the standards of judgments recalls the problem confronted by my late friend Walter Berns, as he dealt with a comparable dispute about pornography: that there were too many tricky, borderline cases; too many conceptual puzzles in separating the erotic work of artistic merit from the displays “without redeeming social value.” Berns recognized that the surety of judgment was impossible to confirm. And yet it was better to take the matter seriously—and bear the risk of mistakes—than to back ourselves into the position that the law is entirely bereft of the grounds of reasoned, moral judgment.
We have seen now the dramatic results of lawyers and judges receding from any confidence in making judgments on pornography. On the matter of speech, we have seen the detachment from serious judgment playing out now on the fires of intolerance on our campuses. I think we make a profound mistake if we believe now that we can find the corrective—and our safety—in persuading ourselves, earnestly, that we are indeed bereft of the grounds of moral judgment.
Robert Miller ended his piece by affirming his trust in the judgment of the American people. I would double down: I trust in the capacity of ordinary people to grasp those commonsense distinctions that used to guide our law—and which are still understood by ordinary folk, even while professors and judges around them have come to regard those distinctions as inscrutable.
Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights and the American Founding in Washington, D.C.