Caring for Words, VII: Free Speech?


Among the actions the First Amendment to the US Constitution prevents Congress from doing is the making of any law “abridging the freedom of speech.” Nevertheless, the US Supreme Court recognizes constitutionally acceptable limits to this freedom, including incitement to “imminent lawless action,” possessing or producing child pornography, and violation of copyright. Free speech, of necessity, comes with restrictions in the interest of some other compelling good. This leaves to be decided, of course, what goods are sufficiently compelling, as well as where to draw a line between troubling, offensive, or discourteous speech and speech constituting a “clear and present danger.”

Not all protected speech content is prudent or helpful. There are words or opinions a considerate person is constitutionally entitled to express but chooses not to. Communities often observe prudential speech conventions, though these change over time as sensibilities and demographics evolve – sometimes by choice, sometimes by command, sometimes as the result of concerted social action.

For John Milton (yes, that John Milton), who addressed his defense of free speech and publication to the Presbyterian-controlled Parliament in 1644, near the height of the English Civil War, the line of tolerance excluded Catholics from any claim to protected speech. Free-speech advocates for whom Milton is a hero tend to skip over that detail now. Who and what is proscribed, whether by law or convention, depends on who has a voice in the discussion. Most non-black Americans stopped using the “N-word” as social relationships and sensibilities changed during and after the Civil Rights Era. It’s an embarrassingly tiny but welcome development in a long, unfinished struggle.

Names – and who gets to choose them – are particularly contentious. Alaska’s request to restore the Koyukon Athabascan name, Denali, to the mountain named in 1896 by a white gold prospector as Mount McKinley was delayed forty years (1975-2015). The primary opponent to the change was an Ohio congressman representing the district where William McKinley spent much of his life. To the Koyukon people, it has always been Denali. It took the US government a century to agree.

“Not far from the end of his Areopagitica, and after having celebrated the virtues of toleration and unregulated publication in passages that find their way into every discussion of free speech and the First Amendment, John Milton catches himself up short and says, of course I didn’t mean Catholics, them we exterminate:

‘I mean not tolerated popery, and open superstition, which as it extirpates all religious and civil supremacies, so itself should be extirpate . . . that also which is impious or evil absolutely against faith or manners no law can possibly permit that intends not to unlaw itself.’

Notice that Milton is not simply stipulating a single exception to a rule
generally in place; the kinds of utterance that might be regulated and even prohibited on pain of trial and punishment constitute an open set; popery is named only as a particularly perspicuous instance of the advocacy that cannot be tolerated.

…all affirmations of freedom of expression are like Milton’s, dependent for their force on an exception that literally carves out the space in which expression can then emerge. I do not mean that expression (saying something) is a realm whose integrity is sometimes compromised by certain restrictions but that restriction, in the form of an underlying articulation of the world that necessarily (if silently) negates alternatively possible articulations, is constitutive of expression. Without restriction, without an inbuilt sense of what it would be meaningless to say or wrong to say, there could be no assertion and no reason for asserting it. The exception to unregulated expression is not a negative restriction but a positive hollowing out of value – we are for this, which means we are against that — in relation to which meaningful assertion can then occur. It is in reference to that value — constituted as all values are by an act of exclusion — that some forms of speech will be heard as (quite literally) intolerable. Speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict. When the pinch comes (and sooner or later it will always come) and the institution (be it church, state, or university) is confronted by behavior subversive of its core rationale, it will respond by declaring “of course we mean not tolerated, that we extirpate,” not because an exception to a general freedom has suddenly and contradictorily been announced, but because the freedom has never been general and has always been understood against the background of an originary exclusion that gives it meaning.”

  • -Stanley Fish, “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too.”
  • “What I think the political correctness debate is really about is the power to be able to define. The definers want the power to name. And the defined are now taking that power away from them.”

  • -Toni Morrison, New York Times Magazine, September 11, 1994
  • Image: John Milton

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