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The Use of Free Speech in Society

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When he was 23 years old, the philosopher Baruch Spinoza was excommunicated. On July 27, 1656, the Talmud Torah congregation of Amsterdam issued an edict declaring that they had heard “more and more serious information about the abominable heresies which he practised and taught and about his monstrous deeds.” Most likely these abominable heresies were that the young Spinoza had admitted he thought God had a body and there was no such thing as an immortal soul. The edict’s condemnation was vivid and thorough: “Cursed be he by day and cursed be he by night; cursed be he when he lies down and cursed be he when he rises up. Cursed be he when he goes out and cursed be he when he comes in.”

Fourteen years later, Spinoza would deliver an earth-shattering defense of freedom of expression in his Theological-Political Treatise. Despite its profound and epochal influence, Spinoza’s argument is rarely revisited in contemporary debates on this celebrated freedom, the first enshrined in the U.S. Constitution. Yet it was Spinoza’s anomalous defense of freedom of expression that inaugurated the Enlightenment, initiating a whole current of thought which held that society could be organized on the principles of reason and freedom. The book was, of course, banned soon after its publication, and Spinoza spent most of the rest of his life making lenses for telescopes and microscopes (apparently of excellent quality). In his spare time, he worked on his philosophical magnum opus Ethics, a groundbreaking work of materialist philosophy famously presented in the form of a geometrical proof. Out of caution, he never published it.

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What people call “cancel culture” doesn’t correspond to the forms of persecution suffered by Spinoza or similar historical figures. It certainly isn’t a question of state repression, as was the case with Spinoza’s friend Adriaan Koerbagh, whose heretical work A Flower Garden Composed of All Kinds of Loveliness landed him in prison. The formalistic defense of the First Amendment tends to obscure the distinction between legal restrictions and informal social practices of criticism or exclusion. Nevertheless, the debates that arise from discussions of “cancel culture” recall the classical arguments in political thought over freedom of expression, despite the fact that the substance of these arguments is almost never examined. We should look at them more closely, however, because they raise fundamental questions about how we should act politically and what constitutes a good society.

The recent “Letter on Justice and Open Debate” in Harper’s Magazine, which has led so far to a torrent of denunciations and the self-expulsions of at least two prominent pundits from their lofty platforms, gave an exemplary expression of the liberal position. It argued that “the free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted. While we have come to expect this on the radical right, censoriousness is also spreading more widely in our culture: an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.”

The vagueness of this commentary allowed for a jarring assortment of signatories, some of whom were apparently surprised to see their names on the list when it was published. But the ambiguity flattened certain distinctions. The Letter presented random internet criticisms of an article or a musical as part of a broader spectrum, almost as if it ran smoothly and continuously towards capital punishment. It seemed as though the problems of freedom of expression and persecution had not been contested throughout history; instead, the present became an exceptional catastrophe. 

While participants in this debate invoke liberal values as a stable and invariant standpoint from which “cancel culture” can be criticized, the reality is that in the history of political thought freedom of expression has been reformulated according to diverging and irreconcilable interpretations, and it leads to broader political questions whose answers are equally contentious and unresolved. As the Roman Tacitus wrote in his Histories, invoked by Spinoza over 1,500 years later: “rare are the happy times when we may think what we wish and say what we think.”

A few decades before Spinoza, the original modern European defense of freedom of expression came in John Milton’s Areopagitica. Milton was arguing against prior restraint by the state of the publication of books, and made the basic point which is repeated in every defense of freedom of expression: that the unconstrained circulation of ideas — the “free and open encounter” of truth and falsehood — contributes to the greater knowledge of society. But he also introduced the basic contradiction of every free speech claim. After arguing for the free and open encounter, Milton noted an exception, Catholicism, “as it extirpates all religions and civil supremacies, so itself should be extirpate.” In a gesture repeated in John Locke’s Letter Concerning Toleration, Milton argued that since Catholicism is suppressive of speech, it should itself be suppressed.

But this is a feature, not a bug. That becomes obvious when we look at the arguments for free speech which turn away from the more clear-cut issue of censorship laws. Spinoza’s argument is somewhat unusual in this regard — it’s partly about laws, but is just as much about the superstitious popular forces of persecution which sought to restore monarchy against the republican state. 

The problem is clearest, however, in the most widely cited text on free speech, John Stuart Mill’s On Liberty. The popularity of Mill’s text, which came 200 years after Spinoza’s, is due not to his originality but to his especially eloquent and persuasive exposition of the argument for the free and open encounter, an invariant feature of the preceding two centuries of arguments for freedom of expression. However, the specificity of Mill’s argument is the radical extent to which he turns precisely away from the issue of laws and state persecution to the “tyranny of the majority” which takes over in democratic societies. The resulting informal pressure of social conformism, Mill argued, can be even worse than state persecution, since “it leaves fewer means of escape, penetrating much more deeply into the details of life.”

What is left hanging in the air by Mill is precisely how speech comes to be constrained by the tyranny of the majority outside of formal legal frameworks. If we are not talking anymore about laws, prisons, and gallows, this means we are necessarily talking about other forms of speech: accusations, insults, gossip, rumors, and so on. 

In other words, Milton’s paradox prevails. The free speech claim, at its core, is a claim that there is another form of speech constraining your speech. Mill does not give us much help in determining how to counteract these bad, repressive forms of speech, other than alluding to “a limit to the legitimate interference of collective opinion with individual independence” and a “morality of public discussion.” However, there is nothing which logically prevents this argument from proceeding to Milton’s conclusion that bad kinds of speech, which constrain our speech, should somehow themselves be extirpated. This need not take the form of laws; it could be as simple as expelling disagreeable guests from your house.

Within this framework we simply have an endless, relativist loop in which different sides make claims for the validity of their speech, and call, whether consciously or not, for some form of censorship of the type of speech that they claim is constraining theirs. We remain in this loop unless we come up with some criteria for what determines “good” speech — that is, starting from the good rather than starting from the “bad” speech which should be constrained — and then determine which social practices would best foster this “good” speech. Simply favoring more speech for speech’s sake is ultimately little more than an argument for Twitter, and thus the rampant proliferation of whatever kind of “bad” speech any side is complaining about.

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The prevailing unsatisfying positions on free speech are all the more unsatisfying because they occasionally point to real social problems. Yascha Mounk writes in The Atlantic of workers fired on the basis of false accusations of racist acts. He begins with an account of the economic hardship faced by a now-jobless electrician without reserves, but ends with a quasi-legal meditation on presumption of innocence and due process. “One of the core tenets of liberal democracy,” Mounk writes, “is that people should not be punished for accusations against them that are unsubstantiated, for actions that are perfectly reasonable, or for offenses that were committed by others.”

This logic seems reasonable, yet taken to its conclusions it suggests that those who are found guilty, by an unspecified judge, of unspecified transgressions — that is, if the accusations are substantiated, or the actions are unreasonable, or the offenses can’t be attributed to others — could fairly be assigned the punishment of unemployment in a society in which our right to live is tied to our ability to work. “Liberal democracy” is not equipped to dispute the fairness of this outcome.

To his credit, Mounk has also published an article by Zaid Jilani in his own new journal Persuasion arguing that protection from this kind of punishment by bosses could be achieved by ending at-will employment, which allows employers to fire their employees for essentially any reason. Yet even this article ends by grounding this demand not in a right to subsistence or a struggle for working-class political power, but in philosophical liberalism. The bottom line is always a “pluralistic society that encourages ideological diversity.” 

This conception of a free society is a common one in the contemporary West, ingrained in schoolchildren across Europe and North America. It is predicated on an adversarial conception of human relations: I may disagree with what you say, but I will defend to the death your right to say it. This famous line, constantly invoked in defense of free speech, is commonly attributed to Voltaire. The attribution is apocryphal; yet the inclusion of Voltaire in the free speech canon points us to important lines of demarcation in the history of the Enlightenment. Voltaire, along with current liberal darling Alexander Hamilton, belongs to the legacy that the historian Jonathan Israel has characterized as the “Moderate Enlightenment,” which in contrast to the “Radical” Enlightenment of Spinoza tried to rein in the revolutionary scope of the new philosophy, reconciling it with the hierarchies and inequalities of the existing society. It is this moderate version which lives on in contemporary liberalism.

Curiously, the hegemony of liberalism is so great that even many who argue against the critique of “cancel culture” articulate their response within its ideological boundaries. In The New Republic, Osita Nwanevu argues that the critics are actually illiberal reactionaries, who fail to understand that “progressive identity politics” is actually protecting liberalism. He reiterates what we have already heard from reactionary liberals: “Liberalism is an ideology of the individual. Its first principle is that each and every person in society is possessed of a fundamental dignity and can claim certain ineradicable rights and freedoms. Liberals believe, too, in government by consent and the rule of law: The state cannot exercise wholly arbitrary power, and its statutes bind all equally.”

Nwanevu counters the liberal fixation on freedom of speech with a defense of freedom of association — that is, the right of people to gather around agreement on shared values and decide what articles they want to publish and what speakers they want to invite to their universities. If people are unable to publish an article in a particular newspaper or speak at a particular university — let’s say they’ve been denied the power to do so — this doesn’t mean their rights have been infringed. (As we’ll see later, this opposition between right and power is precisely what Spinoza questioned.) Nwanevu concludes that socialism is the best way to realize the liberal principles of individual rights, since “true autonomy” is “a fiction under the domination of capital.” Socialism and progressive identity politics, the real defenders of liberalism, are the forces which will realize the individual autonomy it aims at.

Set aside for the moment these allusions to socialism, which are externally imported into the argument. At the level at which it is really articulated, the division between Mounk and Jilani on one side and Nwanevu on the other is simply undecidable, as a result of Milton’s paradox. Each side can make claims about which practices of speech and association are consistent with a pluralistic society that fosters individual freedom, and which ones are not. Since this is not a question of laws, but of informal social processes, we are really always talking about a different kind of speech. “Cancel culture,” in the end, is also a kind of speech, which is either defended or opposed through misleading appeals to an abstract conception of freedom. Each side, whatever its claims to more consistently advocating for a general freedom, is in reality making a subjective claim that the other side is imposing constraints on its particular freedom.

Despite his references to socialism, Nwanevu’s position is actually “libertarian” precisely because it allows for employers to make particular decisions about employment on the basis of associative freedom. While he points to the fact that various forms of discrimination by race and gender have historically constrained speech, freedom of association has been classically invoked, infamously by then law professor Robert Bork in 1963, against antidiscrimination laws like the Civil Rights Act. Bork’s article, coincidentally also published in The New Republic, was a major obstacle to his appointment to the Supreme Court in 1987, despite his attempts to distance himself from it. More recently legal scholar Richard A. Epstein has extended this logic, suitably renovated to account for the entirely justified disgust at Bork’s position, to defend the right of religious business owners to choose exclusively heterosexual customers. An inversion, if you like, of Milton’s paradox: freedom of association entails the imperative to tolerate intolerance.

On the other hand, Mounk and Jilani take a position that actually favors restrictions on speech — that is, the kind of speech they call “cancel culture.” Not only is “cancel culture” defined very broadly in terms of a range of social pressures which are expressed in speech, the decisions of private employers about who they employ can only be characterized as the result of a “culture” insofar as they are influenced by particular acts of speech. This argument has to go back to judging certain kinds of speech as illegitimate, because they stifle ideological diversity, and critics of “cancel culture” are thus ultimately in some way in favor of the suppression of this kind of speech. Of course, we can take the critics at their word that they don’t want to institute any laws repressing speech — but since “cancel culture” isn’t laws either, this doesn’t alter the correspondingly censorious character of both positions.

For this reason the responses to the Letter which pointed out the hypocrisy of many signatories who had themselves been guilty of actively repressing speech (critical of Israel, for example), while entirely correct, did not get to the heart of the matter. When some signatories responded in turn that their disagreement with others on the list illustrated the very points of the Letter, they further obfuscated the question. In fact, this apparent hypocrisy illustrated quite the opposite: that it is impossible to make absolute free speech claims, because all of them will be predicated on some kind of boundary between acceptable and unacceptable speech. So it was not an inconsistency or weakness that the Letter was signed by people who had engaged in repression of speech, but rather a necessary effect of its whole framework.

To borrow from Spinoza’s method of reading the Bible, the effect of the Letter — what it moves people to do — is just as meaningful as its content. Outside the legal sphere nobody actually has the power to stop speech they don’t like. It will continue, so the relevant question is whether the way you respond to this speech will actually foster good speech. There is little evidence the defense of free speech in principle will do that. In fact, in the case of the Letter, it has simply inflamed the discussion. One can be indignant about this, or claim that it has proven one right, but that does not change the fact that the stated aim was not achieved. It is possible, of course, that inflaming the discussion was the aim: to provoke behavior about which one enjoys being indignant. Such practices have little to recommend them.

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There is a very radical problem with the liberal framework of rights, which remains a great obstacle to reconciling liberalism with socialism. It was demonstrated by Karl Marx just after he published his famous 1842 defense of freedom of press. Who is the individual who holds rights? The basic social unit which possesses abstract rights like the right to free speech is the atomized, egoistic individual of the market. The equality of these rights is abstract in the sense that it is in contrast with the real inequalities of the market. A formal defense of rights is powerless against these very real inequalities. To invoke the classic formulations, freedom of press belongs only to those who own one, and the rich and poor are equally forbidden to sleep under bridges.

These inequalities are the result of the market society which also generates formally free and equal rights-bearing individuals. It’s impossible to effectively oppose the situation in which some people are fired without good reason if our whole conception of people revolves around their ability to own and exchange property. We have to go further and reject the organization of social life by the market — or in Marx’s terms, overcome the separation between the abstract individual and the human community.

Liberal values, however, actually extend the logic of the capitalist market to the realm of ideas: as the Letter puts it, “the lifeblood of a liberal society” is the “free exchange of information and ideas.” Thinking in terms of the exchange logic of the famous “marketplace of ideas” means accepting and reinforcing the capitalist market.

According to the most classical justifications of capitalism, market competition leads to greater levels of wealth and prosperity. Those who criticize “cancel culture” by taking a liberal posture are essentially arguing that restrictions on speech prevent the market from doing its thing and generating knowledge. It’s hard to think of a position that more closely corresponds to the worldview of canonical neoliberals like Friedrich Hayek, for whom the market and its price mechanisms were a greater information processor than any computer, and certainly any person. Indeed, the economist Ronald Coase argued that consistent application of free speech principles would entail deregulating both the “market for ideas” and the “market for goods.” (Audaciously, he singled out Milton’s Areopagitica as inconsistent on this score.)

But as the 33 million Americans on unemployment benefits can attest, dependence on the market is an unfortunate condition. It generates a scale of inequality and irrationality which the pandemic has clearly exposed to us. Market competition is no better at generating knowledge than it is at generating masks or jobs. Articulating an abstract conception of freedom of expression as a liberal value reinforces the market logic which caused the problem in the first place. Supplementing it with an opposition to at-will employment is a good step, but also falters if it doesn’t proceed to a critique of the underlying market logic of liberalism.

This brings us to another problem with the liberal conception of freedom of expression, which is that its formal conception of freedom doesn't really tell us anything about what it means to live in a good society. It accepts the premises of the market society, with atomized individuals pursuing their interests. In a critique of Mounk, Eric Levitz accepts the premise that we should aspire to build “a free society in which all individuals get to pursue a meaningful life irrespective of who they are” — that is, a society based on the equality of the abstract individuals of the market. Levitz argues that if Mounk is really committed to these liberal principles, he has to “ask what material conditions are necessary for empowering all people to fully and freely participate in the debates that shape their lives.” Since Mounk’s defense of free speech does not extend to advocating for universal healthcare, Levitz charges him with an inconsistent commitment to liberalism. But where Levitz sees an inconsistency, we actually see the consistent and logical result of liberalism’s market logic, and without another framework we have no basis for arguing for a society different from the one Mounk envisions.

As long as liberal values are taken for granted as the basis for a good society, this means that we’ve never actually posed the question of what a good society could be. In fact, we’ve accepted the idea that there are only societies like the ones we live in already, with the possibility that the market might churn out a few better commodities. But we have to be capable of saying that if necessary, our society should look entirely different from the one we have now, if that’s what it takes for it to qualify as a good society. 

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It’s safe to say that today the debate over “cancel culture” has not produced a Theological-Political Treatise, much less an Ethics. Instead, the discussion of freedom of expression remains largely a reactive posture: in response to the “political correctness” or “wokeness” of the period, freedom of expression is defended as good in itself, because it corresponds to liberal values that are at the core of American society, the practice of journalism, or academic excellence.

But Spinoza’s original defense of freedom of expression was very different from the now dominant one, not least because in its historical originality it actually had to pose the question: what exactly is good about freedom of expression? Why should we prefer it or defend it? Is it good in itself, and if so, why? Is it just a means of establishing something else good in society, and if so, how? While Spinoza could not have anticipated the critique that Marx made of the market logic of abstract rights, he nevertheless proposed a unique way of thinking about the questions of natural right. In this, he surpasses the more moderate liberal theories that would come after him.

Spinoza’s radical move was to understand “right” as the same thing as “power.” It’s meaningless, for Spinoza, to say I have the right to do something if I don’t have the power to do it. So according to Spinoza, people have the right to freedom of thought quite simply because it’s impossible for them to completely transfer power over their minds to someone else. Conversely, the state can’t claim the right to control people’s thoughts because it doesn’t actually have the power to do it. People will still think what they want, and it’s natural that they’ll want to express these thoughts, even if they’re outside of the boundaries of what the state allows. But if they’re punished for expressing what they think, they’ll resent the attempt to control them and this will threaten social stability. It’s therefore bad to impose such limits, because an important quality of political orders is their ability to endure.

This is an entirely pragmatic argument for freedom of expression, which may frustrate those who want hard-and-fast moral foundations. But this theory precedes the market logic of abstract individuals, and by equating right and power, it rejects the idea of determining rights as transcendental norms and instead opens up an inquiry into what kind of society we actually have the power to create. If we dig deeper, we can see that there’s a more positive, affirmative argument for freedom of expression tied to Spinoza’s broader conception of politics. Of course, for Spinoza, too, individual liberty was of decisive importance. But his framework differs markedly from those in which individuals are the atoms of society, including Mill’s defense of individual liberty. As the political theorist Julie E. Cooper writes, “although Spinoza and Mill both consider free speech a catalyst to ‘individuality,’ they offer diametrically opposed portraits of the individual whom public debate protects and produces.” 

For Spinoza, the individual and the collective are mutually constitutive: the individual, itself a composite of different bodies affecting each other, is the effect of a network of relations, not a pre-existing foundation. Power, for Spinoza, isn’t just a fixed property but is affected by the way things are composed: that is, two bodies can enter into a relation with each other which either increases or diminishes their powers of acting. The individual of liberalism is at best an analytic abstraction, since there’s no body which can persist in its being without entering into composition with other bodies. When we enter into compositions that increase our powers of acting, we experience joy, which promises the possibility of overcoming human servitude and realizing freedom. When encounters with other bodies diminish our powers, they generate sadness and leave us prey to the passions, those irrational motives of human behavior. It was these that led Thomas Hobbes, in a theory very close to Spinoza’s, to argue for the necessity of a powerful sovereign to control the multitude.

“Within the grips of the sad passions,” the philosopher and Spinoza scholar Hasana Sharp has written, “the social body’s power to think and act is weakened, and the actions that spring from them often produce more sadness rather than less.” These passive emotions which accompany powerlessness — fear, hate, envy — make us susceptible to superstition and tyranny, and it’s this that leads to the most distressing phenomenon of politics: the fact that people so often fight for their servitude as if it were their salvation. (Social media, if it is nothing else, is a machine for generating sad passions; this is a challenge for contemporary political thought.)

In this sense, freedom of expression has a positive meaning: there are ways we can enter into composition with each other to enhance our powers of acting, which are also our rational capacities. We’re capable of greater knowledge if we enter into empowering compositions. But this is quite different from understanding knowledge in terms of market competition, which clearly diminishes our powers. Who knows how many great scientific minds, capable of contributing to the search for a COVID-19 vaccine or a strategy to counter climate change, are languishing in slums? The liberal defense of free speech is not equipped to counteract the reality that in capitalist societies, freedom of expression is limited to a kind of aristocracy: those who have access to the means of communication through ownership, education, and pedigree.

So this isn’t a question of formal restrictions or liberties. We may have constitutionally guaranteed freedom of speech, but this doesn’t prevent us from still being subject to sad passions — amply illustrated in our current political reality by everything from the bitter and resentful prattle of Donald Trump to the pious self-flagellations of Robin DiAngelo. Along the same lines, the most consistent application of civil liberties gives no guarantee of actually increasing our powers. To do that, we have to achieve a form of social organization which encourages good compositions, which increase our collective power of acting. Otherwise, it’s the sad passions which predominate — and it’s no use, Spinoza tells us, to try to rationally refute the sad passions. They have to be countered with action that actually increases our power.

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The advantage of Spinoza’s theory is twofold. First, with his theory of the sad passions, he provides an explanation for the susceptibility of people to superstition and tyranny, rather than just an indignant response. They’re the result of diminished powers of acting, the basic condition of our contemporary political life, and have to be countered practically with compositions that increase our power. Otherwise persecution will persist, and none of our moral indignation will stop it. Second, with his theory of human freedom, he provides an affirmative perspective on what constitutes a good society. A good society is organized in such a way as to increase our powers; it’s one in which people are composed into a self-governing collective body, rather than superstitious and tyrannical mobs.

In this sense Spinoza provides a far deeper theory of democracy than the one which rests on liberal market values. Aware of the possibility that the multitude may support tyranny, he equivocates on the superiority of democracy to other forms of government. Yet he also outlines the possibility of democracy which is characterized not by the abstract freedom of atomized individuals, but by the empowerment of the social body, constituted by the compositions that affect us. As Sharp puts it, “for Spinoza, democracy requires that the people, the demos, are in actuality powerful.” This is a very different conception of freedom from the liberal individualist one: “Freedom is not an escape from being affected and determined by others. Freedom emerges in and through collective association, which can only be enacted if that collectivity is not characterized primarily by fear, hatred, and anxiety.”

Of course, we won’t be able to analyze the complicated workings of contemporary digital discourse with the ideas of a 17th century lens grinder. We also won’t be able to copy a political program from someone writing at the very dawn of capitalist society. But it would serve us well today to revisit the political history of the idea of freedom of expression, and build on Spinoza’s intuitions. The spirit of debate should be extended to the problem of freedom of expression itself, with the participation of a far broader public, following Spinoza’s point in his last work, the unfinished Political Treatise: “when the few decide everything, simply on the basis of their own affects, freedom and the common good are lost. For human wits are too sluggish to penetrate everything right away. But by asking advice, listening, and arguing, they’re sharpened. When people try all means, in the end they find ways to the things they want which everyone approves, and no one had ever thought of before.”