Free Speech Problems and the Critical Pause

     In his influential work Free Speech and Its Relation to Self-Government (1948), Alexander Meiklejohn wrote:

"To be afraid of ideas, any idea, is to be unfit for self-government. Any such suppression of ideas about the common good, the First Amendment condemns with its absolute disapproval. The freedom of ideas shall not be abridged."

     This statement comes to us as a canonical declaration of sorts. It is an often quoted expression of absolute principle by a revered philosopher, educator, and proponent of free speech.

     I most recently ran across this statement shortly after the events in Charlottesville. It affected me differently than it has before and I noticed several problems embedded within it that I had previously read past and that I think are deeply instructive to our current situation.

     As an initial matter, Meiklejohn seems to equate the fear of speech with the desire to suppress it, even though the latter does not necessarily follow from the former. It is one thing to think that an idea has fearful implications or may have fearful consequences, and another thing to believe that the law should therefore prohibit its expression.

     More fundamentally, though, it seems to me odd--and inconsistent with the realities of human nature--to proclaim that fear is off limits because it renders us incapable of participating productively in the democratic process. I can be both fearful and rational. And I can be afraid of ideas without softening to tyranny.

     Furthermore, it can be argued that Meiklejohn advocates here for just another form of censorship. This passage sounds like yet another remote voice telling us what we are allowed to believe and internally experience. I do not understand why forbidding an emotion is less offensive than forbidding the expression of it. 

     I also hear in Meiklejohn's statement the voice of privilege: "you must not be afraid, those of you who have reason to fear." It is easy to say such things if you stand outside the group targeted by the fear-inducing speech. The courage of the unthreatened is cheap courage.

     Reading this passage afresh reminded me of the cautionary note Dietrich Bonhoeffer sounded with respect to the theological concept of grace. Bonhoeffer warned against the forgiveness that we generously bestow upon ourselves with no expectation of anything like real sacrifice or genuine repentance. True grace, Bonhoeffer argued, comes with a cost.

     Saying "never be afraid of any idea" therefore seems to me twice wrong. Like saying "never be afraid of fire" or "never be afraid of surgery," it ignores the possibility of rational concern over real risk. And it disregards the emotional realities of those who may be different from us and whose fears require real courage to surmount.

     This is not to say that Meiklejohn's famous injunction is useless. To the contrary, as Kwame Anthony Appiah discusses in his recent book As If, philosophers have recognized that "untruths" can be useful to our thinking. Similarly, the law finds utility in "legal fictions"--concepts that we adopt not because they are true but because treating them as if they were true yields doctrinally desirable results.

     First Amendment law makes use of a number of legal fictions. One of the most important is Holmes's famous "marketplace of ideas" model, which maintains that in a free and open exchange of ideas the good ones will prevail over the bad. Of course, as an empirical matter we know that it often does not work out this way--as the realist Holmes understood. Indeed, as I have written elsewhere, we might well conclude that somewhere in the course of the 2016 election cycle the marketplace of ideas crashed.

     One of the problems with such untruths and fictions is that they become ingrained in our thinking and we move to them too quickly. We do not hesitate to acknowledge candidly that they rest upon a proposition that we know is often, or maybe even always, false. We do not pause to recognize that all such thinking comes at a cost--and we do not take time to listen to those from whom that cost is extracted. I will call this the "critical pause"--critical both in the sense of being important and in the sense of entailing careful analysis and questioning.  

     With these thoughts in mind, let me return to Charlottesville. After the events there, those who experienced fear about the ideas being expressed were met with responses that went very quickly to our useful untruths and legal fictions.

     "Do not worry about ideas," they were told, "other, better ideas will win out over them." This a hard fiction for people to accept when they have reasons to think otherwise.

     "Do not worry about ideas," they were told, "worry about your fear, because the only thing you have to fear is fear itself." This, too, is just another useful untruth--even if a rhetorically powerful one. Yes, fear can lead us to do terrible and irrational things; but, surely, we call all admit that it is not the only thing we have to fear.

     I think that these responses generally came from well-meaning people speaking in good faith. But I believe that many of them missed that critical pause--the moment where you acknowledge that the fear being experienced by others is real, legitimate, rational, and important. And, again, every useful untruth comes at a cost, and the failure to pause and to recognize and weigh that cost is not just unfeeling--it is sloppy thinking.

     Many of our great universities have recognized the importance of the critical pause. When a hateful event occurs on campus, they issue empathic statements and take supportive actions directed toward the affected communities. In other words, when hateful speech gets aired, these universities turn first to the reactions of those who were targeted by it.

     Great universities do not simply shrug and command people to be unafraid, or tell them they have nothing to fear but fear itself, or offer up false assurances about how good ideas will always prevail over bad ones. Rather, they take the critical pause to think first about the cost at which those potentially useful untruths come. They do so out of respect for those who are called upon to have real courage at real cost. And they do so because forgoing the critical pause is precisely  the sort of superficial and unreflective thinking that great universities reject.

     When universities take the critical pause they are often condemned for it. They are accused of coddling students, of cultivating snowflakes, of manufacturing unrealistically safe spaces, and of being antagonistic to free speech. This is, of course, wrong on multiple fronts. To say that the fear of ideas is the same thing as the desire to repress them is to make the same mistake that Meiklejohn made. To assume that fear is always irrational and is itself the most fearful thing we face is to ignore reality. And to disregard the fact that useful untruths are--while useful--still untrue is to embrace an extravagant illusion.

     Sound free speech arguments can rest upon the proposition that we should behave as if we were unafraid and as if the marketplace of ideas always worked. But arguments that fail to take the critical pause in this analysis will hold little appeal for those who are burdened by the cost of those fictions. On the other hand, acknowledging the existence of emotional realities comes with no cost to free expression. To the contrary, it seems to me the necessary predicate for a respectful and inclusive conversation about this subject--as for every other subject under the sun.