Friends Clashing—Yet One More Time—On Free Speech

Hadley Arkes writes:

Once more unto the breach! I’m afraid that my ever dearer friend, Robert Miller, is as tenacious as I am in not letting go of an argument. But it could be that, after this recent exchange (see here, here, and here), the differences between us may be seen to have narrowed, and as a colleague of mine put it, we may be, on certain critical points, in a state of “heated agreement.” It is worth noting where those differences fade away; and we may see then, with a more refined sense of things, where the differences may still remain.

For one thing, just to be clear, we are not divided on the question of whether there are standards of judgment, accessible to us, in judging wrongful, unjustified uses of speech, just as we have standards for judging the wrongs that may be inflicted through every other instrument of our freedom, whether driving cars or selling pharmaceuticals. As Miller says, “fraud, incitement, and obscenity” may rightly be prohibited, even though the prohibitions are imposed by law and administered—gasp—by people in the government!—that is, administered by those forked creatures who are as prone as the rest of us to make mistakes.

Miller spends a remarkable portion of his space seeking to point out to me that there are many wrongs, from things trivial to grand, that we haven’t stamped as illegal by forbidding them through the law. It apparently escaped the recall of my good friend that he was laboring here to plead to me an argument that I have been making for nearly forty years, beginning with my book, The Philosopher in the City (1981). I’ve had ample occasion to point out over the years those warnings offered by Aquinas: that the law cannot hope to extirpate all evils; at best it can hope to compress evils to a level that can be more readily borne. The law cannot convert human beings into angels, and a government that would strain to that impracticable end would require powers well beyond anything that is safe to put in the hands of those bipeds walking about us. As Aquinas put it in the Summa Theologica, the aim of the law is to lead people to virtue, not suddenly, but gradually. One needed to take care, he said, not to “lay upon the multitude of imperfect men the burdens of those who are already virtuous”—namely, that they should abstain, with stringency, from all manner of vice. “Otherwise,” he wrote, “these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus, it is written (Prov. 33): He that violently bloweth his nose, bringeth out blood; and (Matt. ix.17) that if new wine is put into old bottles, the bottles break, and the wine runneth out.”

Here, my friend might have remembered, we have no real difference. But here, too, we have the point that joins our forbearance of moral shortfalls with the point that Rob Miller takes as his chief concern: that people in official authority may not only make mistakes, but make willful, self-serving mistakes. And the prudent solution here was that the law should be used sparingly, with the sense that it cannot accomplish fully even its own good ends. The people who enforce the laws show that rightful sense of prudence when they pick carefully the cases they choose to prosecute and they focus the attention of the public on the cases that teach the clearest lessons. The Department of Justice decided to enforce the Civil Rights Act of 1964 on Ollie’s Barbecue in Birmingham, Alabama; and when that point was made, there was less need to be making it again in many other establishments, small or large. When he was District Attorney in New York, in the days before Roe v. Wade, the late Frank O’Connor would ever so often zing an indictment against a fashionable doctor on Park Avenue who was performing abortions. Abortions performed underground would always be hard to police. But the moral point could be made tellingly at times, and what the D.A. conveyed was the lesson that the government was not asleep, and neither was it morally indifferent to the killing of babies in wombs.

If the concern is that the power to regulate speech may be abused and turned to wrongful ends, there is not a single domain of the law that is immune to that danger. If the possibility of abuse were enough to justify the withholding of the law, we could plausibly argue for the elimination of Social Security, Medicare, and the laws on Civil Rights. But if there is a wrongful use of the laws, then the corrective should come in showing, with reasoned argument and evidence, just where the mistakes have been made. The corrective surely cannot come by flying to the conclusion that not even justified laws are warranted because we are no longer confident that people in public office have even the competence, in common sense, to judge between the things justified or unjustified, rightful or wrongful.

On this point I find myself appealing again to the wisdom of the late Walter Berns, in his classic essay on pornography. “We began,” he wrote, “with a proper distrust of the capacities of juries and judges to make sound judgments. . . . [B]ut led by the Supreme Court we went on improperly to conclude that judgments should not be made because they cannot be made, that there is nothing for anyone to judge.” If we take a sober reading of our current situation, it is evident to anyone by now that this “culture” of ours has become awash in a moral relativism that has pervaded our schools and popular media. Surely this is the worst time of all times to adopt, as the default position for our law, that we regard it as politically hazardous to assume that anyone in public office has the competence to make even rudimentary moral judgments and apply them with any integrity.

In this vein, few decisions of the Court have been as corrupting for our public discourse as that decision in Cohen v. California, which Robert Miller has given an ardent defense. That was the case in which a young man, in a courthouse in Los Angeles was asked to remove a jacket with the wording, “F*** the Draft.” (Note: Public Discourse chooses to render that passage as “F*** the Draft,” joining other journals and confirming my point.) In defending Cohen and his jacket, Justice Harlan made his reputation for originality in the law by rediscovering those doctrines of “logical positivism” that were all the rage when he was an undergraduate. He was persuaded now that the moral language of right and wrong was largely “emotive” in character, with almost no cognitive content. Hence his aphorism grown famous: that “One man’s vulgarity is another’s lyric.” It was precisely because the meaning of language was so subjective that he would be so blithe in registering his doubt that Cohen’s jacket had any fixed meaning, or that there was any principled ground for “distinguish[ing] this [word—”F***”] from any other offensive word.”

But Harlan’s position revealed its own incoherence as he sought to protect Cohen’s “speech” as a species of “political speech.” If these words were really so elusive in their meaning, how did he know that the speech was “political”? “F*** the Draft,” as I’ve said on other occasions, could have meant “Make Love to the Wind.” But Harlan knew the jacket was political because the words, in ordinary usage, conveyed the moral function of condemning the military Draft. Words will shift over time in their meaning, but the moral functions of condemning and commending, blaming and praising, are part of the mint of our natures; and at any given moment, if language is to function, ordinary people need to have a sense of the words that do carry those functions. Within that class of words recognized as moral terms, there are words with a special edge—words that insult, deride, defame, assault. And in ordinary language, used by ordinary people, as I’ve said, truck drivers and construction workers are as quick to grasp insult and derision as much as lawyers and postmodernist professors.

For Harlan to ask, How are we to know these words, and distinguish them from any other offensive terms?—is to pose a challenge of feigned imbecility. The laws have counted for years on the experience of life as lived that ordinary people readily grasp these distinctions, planted in ordinary usage all around them. And under the premises of classical liberalism, as I’ve explained in these columns, if there is the slightest doubt that we’re dealing with a term instantly grasped as a term of assault, that is a sufficient ground in itself for holding back any prosecution in the law.

In a curious passage in his opinion, Harlan remarked that, “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.” Harlan wanted to confine the test of “fighting words” to words said in a face-to-face encounter. I had read him here to be thinking ahead to what he would say if the jacket had said, “F*** the Jews” or “F*** the [N-word.]” Would his judgment really have hinged on the prediction of a whether a Jew or a black man was likely to enter the building? Would it really have been an incomprehensible notion that even people who are not Jews or blacks may object to that kind of language, as unfitting for a public place? Miller notes that Cohen might have been charged under an alternative statute that sought to bar “vulgar, profane, or indecent language within the presence of hearing of women or children, in a loud and boisterous manner.” Well, then would Miller have had a problem any longer with a judgment that Cohen’s jacket might have been tenably barred from this public courthouse—and barred even though that judgment had to be made by someone in official authority? As for myself, count me as thinking that no serious freedom would be impaired in this country if the law simply sought to preserve in this way a climate of civility in by barring signs such as “F*** the Jews” or “F*** the [N-words]” in public buildings. If Miller joins me in that judgment, then where would there be any longer any difference of consequence between us?

The brutal fact of the matter is that no decision of the Court has been more revolutionary in coarsening the climate of public discourse in this country and the manner in which our people encounter one another in public settings. Before Cohen, those who ventured into public places could reasonably expect that people would restrain themselves out of a respect for the sensibilities of others in a public setting. But Cohen reversed those expectations: the reigning premise now was that, if people were offended by public displays and coarse, assaulting speech, they should avert their eyes and ears, develop tougher skin, or simply avoid those public places altogether. For years, urbanists have favored public transport over private cars, and they’ve urged architectural designs that encourage strangers to encounter one another in public places. But at the same time, thanks to Justice Harlan and the colleagues who have followed him, the courts have been dismantling the moral framework that used to make that kind of urban life more tenable.

And yet there has been one notable carve-out from this regime of relativism in speech that the Court has been reinforcing since Cohen v. California. There has been one singular exception to the sweeping protections accorded to speech, and that has been those speakers and demonstrators known as “pro-life.” When it comes to pro-life groups standing outside abortion clinics, with signs, or simply in prayer, the people seeking to enter those clinics have not been asked to avert their eyes or even forego walking past the demonstrators. It has been the pro-lifers who have been pushed farther from sight and from earshot. The pro-lifers have been banned at times from approaching women entering the clinic in the hope of drawing them into a conversation. In one case they have been barred from coming closer than eight feet in trying to engage in that conversation. And in another case, a priest and a bishop were barred even from praying silently in front of the clinic; for after all, people may decode this act of praying as a gesture of moral condemnation. Even, then, in this age of free-wheeling relativism, the law does seem to call upon certain sources of judgment in branding some speech acts as insulting and illegitimate.

My point here is that all of this has taken place as the Court has moved even more forcefully to the side of affirming that there are no grounds for restricting speech as “offensive.” And there is no place now where even the muffled reference to the N-word does not set off an explosion of outrage and condemnation, even when the allusion comes from Mark Twain in Huckleberry Finn. The outrage flares even when people make references to that word for the sake of condemning it! There will be no doctrine of free speech these days so sweeping in its tolerance that it will protect even the non-assaulting use of that word. Which may merely confirm a truth that cannot be effaced: human beings, as moral agents, will always bring forth words that commend and condemn, praise and assault, and no matter how liberal the doctrines of the law, there will always be words and gestures regarded as so unacceptable that they will banished in respectable company, and yes, banned in the law.

That state of affairs is simply anchored, I submit, in the mint of our nature; and no system we devise will ever quash that disposition to make hard moral judgments on the language that people use, for language is inescapably a “social” matter” in its meaning and its civic character. No abiding concern for people in public authority making mistakes will ever overcome the sense that those judgments can be made and should be made; and so we cannot plausibly retreat to the simple maxim that, for the vibrancy of our public life, those judgments should never be made. The enduring concern, rather, is that they be made with restraint, with caution and prudence, and with the discipline of giving reasons. In the meantime, as the savvy Justice Robert Jackson warned us, we should not be so romanced by theories, with our heads in the sky, that we can cannot take the measure of that world in which we are anchored by nature. “An old proverb warns us,” said Jackson, “to take heed lest we ‘walk into a well from looking at the stars.’“

Robert T. Miller writes:

Hadley Arkes says we may be approaching “heated agreement.” I think my friend overstates things, but there are some important matters about which he and I do agree.

First, we agree that there are objective moral standards by which we can judge whether a person’s speech, like any other aspect of his behavior, is right or wrong, good or bad.

Second, we agree that there are some forms of morally wrongful speech that the government may and should prohibit. These include fraud and obscenity, as well as incitement, which is speech advocating imminent lawless action (“Kill the guy in the MAGA hat!”), and fighting words, which are insults delivered face-to-face in a manner likely to provoke immediate violence from the person to whom they are addressed (“F*** you, pig!”). We also agree that the government may and should prohibit profanity (e.g., the infamous four-letter words), at least in certain contexts, such as on broadcast television under the FCC’s indecency ban.

Third, we agree that there are forms of morally wrongful conduct that the government should not prohibit, but here, I suspect, the agreement is incomplete. Arkes says that he has always held that there are some forms of wrongful conduct that it is imprudent for the government to prohibit, and he wonders how I might not have known this. I knew it full well. In my prior essay, I was belaboring, but apparently did not belabor enough, the stronger claim that there are some forms of wrongful conduct that it is immoral—not just imprudent, but immoral—for government to prohibit. Whether Arkes agrees with this stronger position, I am not sure. The closest he comes to this view is his statement that a government that attempted to make men into angels “would require powers well beyond anything that it is safe to put into the hands” of government officials. True enough, but even this is ambiguous: does it mean that conferring such powers on government is morally wrong, or just imprudent? I belabored this point because Arkes often seems to argue that, if the law does not enforce a particular objective moral standard, the reason has to be that the law has rejected that objective standard and gone relativistic. The fact that there are often objective moral reasons for not enforcing by law an objective moral standard shows that this inference is fallacious.

Arkes and I also continue to disagree about laws like the one the Supreme Court considered in Cohen v. California. We should be very clear about what this statute did: the statute made it a crime for any person to engage in “offensive” speech, anytime, anywhere, in the presence of any other person. The statute applied in public buildings, on the public street, on private property, even in a person’s own home, entirely without regard to time, place, or manner. It did not require the use of profane language, did not require that the offensive speech be directed at anyone present, and did not require that those who heard the speech be in any way especially sensitive (e.g., be children). Since it punished a very broad range of speech (“offensive speech” includes much more than “profane speech”), and since it had no limitations of any kind as to time, place or manner, this statute was one of the most sweeping regulations of speech imaginable. An equally sweeping regulation of conduct would be a law that made it a crime to treat any person, anywhere, anytime, in any way that was “unfair.” Arkes and I disagree about this statute because he thinks this sweeping prohibition on offensive speech is moral and prudent, but I think that the statute is so susceptible to abuse that empowering government in this way is not only imprudent but positively immoral.

Why do we disagree? Arkes seems to think that, since the underlying moral standard is objective, the law that embodies that standard will be enforced in a generally fair and predictable way. I vigorously deny that. For me, the fact that the underlying standard is objective—meaning that there is a true answer, independent of what anyone may think or feel, as to whether certain speech is offensive—does not imply that there will be wide agreement among people about whether a given bit of speech is offensive. After all, physics is objective in the sense indicated, and yet there are many hotly contested questions in physics. Similarly, questions of fairness are objective, but people disagree all the time, even in good faith, about what’s fair. In my view, the possibility—indeed, the inevitability—of significant disagreement over particular applications of a statute prohibiting “offensive” speech ensures that such a statute will not be enforced predictably. Worse, because there will be so much disagreement over particular cases, it will be easy for officials to pervert the statute to illegitimate ends—for example, to apply it selectively in order to suppress speech based on the viewpoint it expresses. To avoid such problems, we should suppress only very limited classes of particularly bad speech—the kinds I mentioned above—and we should do so only by means of narrowly drawn statutes that make it very clear which kinds of speech are prohibited, where, and when. By reducing disagreement about particular cases, such statutes will operate predictably and leave little room for abuse.

Implicitly acknowledging the dangers of the extremely broad sweep created by the statute at issue in Cohen, Arkes says that “the prudent solution here was that the law should be used sparingly,” and “the people who enforce the laws [should] show a rightful sense of prudence when they pick carefully the cases they choose to prosecute.” I agree they should do this, but I doubt very much that they will.

Consider what happened in Cohen. A police officer in a Los Angeles courthouse noticed Cohen’s jacket inscribed with the words, “F*** the Draft,” and he sent a note to the judge presiding in the courtroom where Cohen was sitting, suggesting that the judge hold Cohen in contempt. The judge declined to do so, probably because Cohen was not being disruptive and no one else was complaining about his jacket. Only then did the officer arrest Cohen.

Now, do you think Cohen was the only individual who used a four-letter word, or even some milder form of “offensive” language, in that courthouse that day? That is extremely unlikely. Moreover, in the whole state of California that day, I’m sure thousands, probably millions, of people violated the relevant statute. Why was Cohen alone singled out to be punished? Would Cohen have been arrested if his jacket had said, “F*** the Viet Cong”? In that case, the same police officer may have just called Cohen aside and offered some fatherly advice about decorum. If so, Cohen’s arrest was an abuse, because it was based in part on the viewpoint Cohen expressed, not merely on the offensiveness of his language.

Arkes asks, “Would Miller have a problem . . . with a judgment that Cohen’s jacket might have been . . . barred from the public courthouse?” No, I wouldn’t, but in Cohen v. California, the state didn’t bar Cohen’s jacket from the courthouse; it sentenced Cohen himself to thirty days in jail. Even still, I would have no problem with convicting Cohen of a crime, if Cohen had been convicted under a statute that prohibited profanity in public buildings (rather than offensive language everywhere) and if that statute was enforced evenhandedly and not selectively against disfavored viewpoints. Arkes should not be surprised at this answer, because it’s largely the same one Justice Harlan gave in his opinion in this case. He wrote, “Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail” because the statute applied “throughout the entire state” and contained no limiting language that would “put [Cohen] on notice that certain kinds of otherwise permissible speech or conduct would nevertheless . . . not be tolerated in certain places.” Arkes cannot defend this sweeping statute by saying that a much more limited statute would be okay.

What would happen today in the United States if states could prohibit “offensive” speech, anytime, anyway? I think the best evidence is how European nations enforce their hate-speech laws. Under these laws, people have been convicted of crimes for saying things like, “Islam out of Britain” (United Kingdom), Muslims “lead us around by the nose” (France), and we should have “fewer Moroccans” in the country (Netherlands). These are but three of thousands of cases in the European Union. If we had similar statutes in the United States, we would get similar results. Or, at least, we would get such results in New York City and San Francisco; the effect of identically-worded laws in Wyoming and Utah would likely be quite different. Is this a prudent and moral system?

Responding to such arguments, Arkes first tries to backtrack, arguing that “if the concern is that the power to regulate speech may be abused,” then “there is not a single domain of the law that is immune to that danger.” Hence, “the possibility of abuse” does not “justify the withholding of the law.” This won’t do. Arkes has already conceded that there are “powers well beyond anything that is safe to put into the hands” of government. He has also conceded that the power to regulate speech may be abused. The only question left is the empirical one as to whether a statute that empowers government to suppress “offensive” speech anytime, anywhere, is so susceptible of abuse that it is not safe to put that power into the hands of government. In answering it, only empirical arguments are relevant.

And Arkes does have some empirical arguments, though none that I find convincing. First, Arkes notes that Cohen has not prevented government from sometimes suppressing pro-life speech outside abortion clinics. The implication is that, although robust protections for free speech are in theory less susceptible to abuse than the weaker protections Arkes favors, nevertheless good speech may be suppressed under the stronger standards too; if the amount of good speech suppressed under the two standards is about the same, then the stronger ones provide no benefit in the form of good speech saved from suppression. True enough, but that qualification—if the amount of good speech suppressed under the two standards is about the same—is critically important, and there is no reason to think it’s true and plenty of reasons to think it’s false. The commonsense view is that the more power government has, the more abuses of power there will be. Moreover, as Arkes himself admits, the suppression of pro-life speech is “one singular exception to the sweeping protections accorded speech.” Indeed, it is part of the Supreme Court’s sui generis jurisprudence protecting abortion (what other elective surgical procedure may a minor obtain without parental consent?). Leaving aside the radioactive subject of abortion, conservatives routinely win First Amendment cases, such as challenges to speech codes at public universities, that they would certainly lose if the government had the power to punish “offensive” speech by any person, anytime, anywhere.

Arkes also argues that the benefits of laws like the one in Cohen are much greater than I allow. “No decision of the Court,” Arkes says, “has been more revolutionary in coarsening the climate of public discourse in this country and the manner in which our people encounter one another in public settings.” In other words, before Cohen people didn’t much use the F-word in public, but now that the law does not punish such speech, it’s F-bombs away.

This is wrong, for Cohen in no way restricted the government’s power to prohibit the use of profanity in public. As I noted previously, a different section of the statute under which Cohen was charged prohibited “vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner;” and that section, Justice Harlan suggested, was constitutional. Targeted laws of this kind were constitutional before Cohen and remained so after Cohen. Cohen did not work the sea-change in the law that Arkes says it did.

Moreover, it is not true that coarse language was rare in public before Cohen but became common after Cohen. Cohen was decided in 1971. The entire decade of the 1960s occurred before Cohen, including the Free Speech Movement at Berkeley in 1964, the Filthy Speech Movement in 1965, the nationwide campus protests in 1968, and Woodstock in 1969. Norms of decent behavior in public changed tremendously in the second half of the twentieth century, but not because of Cohen. As Lincoln said, “In this age, in this country, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes or pronounces judicial decisions.” The social history is complex, but the short version is that in the 1960s there was a radical shift in American attitudes about sex, and this included a radical shift in attitudes about the words used to speak about sex, including the word stenciled on Cohen’s jacket. In 1971, the year Cohen was decided, the highest-grossing movies were A Clockwork Orange, The French Connection, and The Last Picture Show. Will people who happily pay money to hear famous actors says the F-word on screen care a lot if other people say the same word on the street? Most of them say that word a lot themselves. In a democratic society like ours, the law follows public opinion; it does not, cannot, and should not control it. Once this change in public attitudes occurred, neither the statute struck down in Cohen nor any other statute could be enforced in a way that made any difference to the quality of public discourse.

Finally, Arkes notes how different things are when it comes to the N-word. He says, “there is no place now where even the muffled reference to the N-word does not set off an explosion of outrage and condemnation,” and ”the outrage flares even when people make references to that word for the sake of condemning it!” This is an illuminating observation. As linguist John McWhorter has pointed out, a few hundred years ago, outrage about bad language centered on swearing (“By God!”). By the late eighteenth century, the concern had largely shifted to language about sexual matters; in Oliver Twist (1839), McWhorter notes, a male character about to refer to his trousers is cut short with the warning, “Ladies present.” More recently, the focus of linguistic concern shifted again and now centers on epithets for particular groups—most of all, the N-word, but also other racial epithets and even derogatory terms for women or gays and lesbians.

I think that all these forms of speech are objectively offensive (except for the references to trousers; pants-talk is okay), but the fact that attitudes shift so dramatically merely highlights the danger of allowing transient majorities to enforce their views by law. There is indeed an objective standard concerning which speech is offensive, but legal enforcement of that standard will never be fair and predictable, and that is why it’s wrong—morally wrong, not just imprudent—to entrust that power to government.