How should the left debate with liberals on ‘free speech’?
Liberalism as an ideology is partly defined by its struggle with its own paradoxes. In the age of the War on Terror, liberalism finds itself at the forefront of its own contradictions between ideas of difference, freedom and the universal, and as a consequence of those tensions, the contradictions of liberal tolerance have become increasingly apparent. Enlightenment tolerance is today invoked in the defence of physical and cultural violence, from the war in Iraq to the burqa ban in France. It becomes necessary to understand the problematic of liberal tolerance and consider a possible alternative delineation of tolerance beyond liberalism.
Historically, liberalism sought both to oppose censorship and to defend the rights of vulnerable minorities. In traditionally authoritarian societies where censorship was employed to defend the interests of the powerful, this position rarely involved a conflict of ends between two opposing goals. Yet in this case liberalism’s own ascendancy presents it with a difficulty: how should liberals view censorship and other illiberal practices enacted in the pursuit of liberal goals? Put like this, the often angry debate over things like legislation banning hate speech demonstrates the vagueness of liberal theory and the resultant split between left and right liberals in the twentieth century. This can be seen as a division between those who saw liberalism as attempting to envision and create a ‘good society’, and those who saw it as a set of methods and rules of thumb. Is freedom, for instance, a necessary building block in the creation of a good society, or merely a rear-guard against the fact that the creation of such a society is impossible, so that we must be able to criticise societies freely? The fetishisation of ‘freedom of expression’, by which it is raised to the level of an absolute good, is an expression of this latter view and therefore a fundamentally liberal position, however much the mostly self-described conservative authors of that view bemoan the ‘liberal establishment’ at every opportunity.
But what is so wrong with this modern formulation of the classical liberal defence of ‘freedom of speech’, by which people should almost never be prohibited from saying things, regardless of the consequences? The first thing to note is the obvious: that speech does indeed have consequences. If everyone in Arizona starts sounding off about how much they despise Mexican immigrants, the Latino child in Phoenix is likely to feel the effects at school when all her classmates pick up the racist opinions of their parents. The question of whether liberal tolerance ought to include intolerant opinions within its ambit hinges on whether liberalism has at its core a programme of ends or of means. Here it may be helpful to distinguish between tolerance as an ideal, and toleration as a practice. For those for whom tolerance amounts merely to toleration – a policy, a method to be followed – the means must justify the ends: the creation of a society that is, in this example, intolerant to Mexicans, is a price worth paying. This is of course problematic in the sense that means interact with ends, so that the practice of tolerance here creates an intolerant society in which the future practice of tolerance is made difficult by the dominance of reactionary opinion. Conversely, certain instances of non-toleration, towards the opinions of racists for instance, might conceivably concur with the general goal of realising tolerance. The maxim ‘one must tolerate’ is thus self-contradictory in the Kantian sense, and moral agents are instead called upon to make a political choice as to which variety of speech they wish to tolerate.
Tolerance defined purely in Isaiah Berlin’s ‘negative’ sense, understood as an absence of repressive intervention in speech and opinion, may engender a momentary freedom but does not create the conditions for a hegemony of tolerance, in which views can be freely and openly expressed and – no less importantly – can be expressed equally: where no one view is privileged by having unique access to the levers of political power.1 Politicians refusing to intervene in the newspaper market, for instance, might be praised by right-liberals as showing an admirable refusal to repress. In fact, if one person is allowed to own and control 70% of the media in a given country and, by doing so, is able to guide and shape public opinion, a kind of negative repression exists, to use Isaiah Berlin’s language. In this state of affairs, without nationally-implemented restrictions on newspaper ownership, there remains the possibility that people’s views can be shaped just as aggressively as if politicians were to forcibly censor 70% of the press.
Speech occurs not in a vacuum but in a context of competing political loyalties. Herbert Marcuse pointed out in a 1965 essay that simply standing back and allowing all views to be expressed openly will mean that the political sphere reflects pre-existing balances of power.2 In Medieval Europe, under such a system, an atheist, while nominally ‘free’, would be unlikely to receive a fair hearing, would struggle to find a platform for his or her views, and would encounter stigma and prejudice on account of the wealth and social position of the Church. The idea that it is inappropriate to regulate political discourse therefore leads to an acceptance of the power relations of the status quo. Liberalism began life in an age when the powerful (including the Church) actively constrained the voices of the oppressed by censorship, but as Marcuse argues, a commitment to giving the powerless a fair hearing might make it necessary to actively constrain those voices which defend the interests of power, and to enhance and protect those who threaten existing orders.
Classical liberalism, as exemplified both by Berlin’s preference for ‘negative’ over ‘positive’ liberty and by Locke and Montesquieu accounts of utopia as based on a ‘state of Nature’, identifies acts – like the politician’s visible action in passing a law to establish censorship – as being the only realm in which politics inheres.3 Perhaps the bastard child of this tendency is in Hayek, Nozick, von Mises, and modern libertarianism, which sees all government as inherently dubious because it intervenes in pre-existing status quos by redistributing wealth and prohibiting offensive acts of speech.4 The assumption is one of naturalistic fallacy: that the status quo needs no act of intervention in order to render it more tolerant. Inequalities of power along lines of class, race or gender, and other mechanisms by which intolerance is woven into the social structure, are therefore hardly addressed at all by this classical liberalism. Many leftists, by contrast, argue that politics precedes our agency rather than emerging along with it. As the earlier examples of newspaper ownership and racism in Arizona demonstrated, direct class power or indirect ideological hegemony can be damaging not only to ideals like equality, which liberals may or may not be concerned about, but also to tolerance. It is wrong, therefore, to allow intolerance to be masked by a notion of politics that is attentive only to overt and openly political acts. The censor’s pen is not always labelled ‘government censor’.
‘Nature’ ought to be open to critique, both as a label for existing power relations and as a concept of goodness in itself. By excluding it from such criticism, as Locke and Montesquieu seek to do when, against Hobbes as well as Marx, they hold it up as a priori desirable, one fails to see how tolerance as an end conflicts with its practice as a means to achieving the end. In actuality, the toleration of conditions which might be deemed ‘Naturally existing’ may not lead to a society that could be called tolerant, instead allowing discourses to be framed in a manner that is intolerant.5
Here it becomes necessary to move from the problems of liberalism’s comprehension of its own ideals, to examine how the ideal itself, a pure and apolitical tolerance, might contain the seeds for its own misapprehension. The necessary classical liberal assumption is that tolerance occurs above the realm of politics. You may value your Bible and I might prefer my Darwin, but with tolerance, we can each express our respective positions; tolerance itself does not judge which is the more worthy. Such is the claim. In fact, and in addition to the unintended but inherent political bias involved in implicitly privileging already powerful forces, this negative tolerance makes political judgements in defining the realm of the ‘tolerable’. Classical liberals do not advocate the toleration of all possible actions – as the political scientist Wendy Brown has pointed out, tolerance only occurs within the limits of what is legal, and the law is clearly not outside the realm of political and ethical determination.6 Debate about the justifiability of actions therefore precedes debate about their tolerability: the question ‘should we tolerate murder?’ is answerable only by recourse to the question ‘is murder justified?’ In other words, a pure tolerance, an apolitical tolerance, is impossible unless anyone is allowed to do literally anything to anyone else.
In the pursuit of a tolerance free from political judgement that still allows for a prohibition on some actions, classical liberals have traditionally promoted a ‘speech/acts’ binary, in which the former ought to be entirely unregulated. But this claim engenders a false distinction. Speech itself is an act, and speech-acts have consequences. The argumentation employed to justify placing limits on actions other than speech consequently applies to speech-acts too. If an action is deemed to be impermissible because it causes someone physical or mental harm, it seems hypocritical to judge differently an act of speech that triggers an equivalent harm – bullying taunts, say, which produce in the victim a similar effect to a punch or kick.
Opposition to placing limits on speech-acts often centres on concern about the effects of such prohibitions, both in the immediate sense of the harms involved in the practice of repression itself and in the ancillary sense of shutting down perspectives that may have something valuable to add to the collective knowledge. In conceding to this logic and refusing to place restrictions on speech, we would, for the sake of avoiding those harms, suffer the harmful consequences caused by the propagation of undesirable speech-acts. A balancing act is instead required, such that speech-acts are forbidden if we firmly believe that their contribution to debate is of less potential significance than the harm they cause, and if such a harm outweighs the intrinsic harm of repression. Lenin was right to stress the importance of confidence when he wrote: ‘those who are really convinced that they have advanced science would demand, not freedom for the new views to continue side by side with the old, but the substitution of the new views for the old.’7 Our judgement may be imperfect and we might restrict speech too far; but this is insufficient reason not to restrict it at all, as the consequences of a failure to restrict speech-acts which ought to be forbidden are no less injurious. Those who called for the release of Nelson Mandela from prison were acutely conscious of the ability of states to abuse their powers to imprison citizens, and they likely knew that the act of imprisonment involves innate harms to those imprisoned, but the great majority of those activists did not oppose all imprisonment. They were aware both that prison could be used sanely and that not imprisoning dangerous criminals would have harmful consequences. The immediate solution is to favour a legal order with a sensible interpretation of what constitutes a crime. The same standards apply to the regulation of speech.
It is here that the left is able to make its most distinctive and valuable contribution. Whereas left-liberals might be persuaded to demand a regulatory framework within which pernicious speech-acts are not tolerated, the more radically transformative demand is for a social order free of the relations of domination which give rise to such sentiments. The general historical pattern has been, unfortunately, for the left to adopt the language of liberalism in demanding ‘political freedoms’ (free speech, etc.) as a precursor to the achievement of more explicitly communistic social freedoms. That is to assume an easy separation between the two categories. Instead, conceiving tolerance as an end requires a broader notion of tolerance as a praxis, whereby the denial of equality to one sector of society is an aberration from tolerance, because it prevents the group concerned from participating in political discourse, and thereby makes possible the practice of intolerance towards that group by ensuring their marginalisation from access to power. This is true of legal and social inequalities, and as even the liberal standard-bearer Rawls admitted in his later work, large economic inequalities also corrode the cohesiveness of the polis and frustrate the ability of citizens to participate equally in political life.8 Toleration of those who argue for the denial of that equality is not a cause worth inscribing on any banners, because tolerance as a social good would require a society in which people could equally express their views. If the articulation of certain views is not punished by law, but a set of power relations still makes their effective articulation difficult, then tolerance is only formal, not real. Economic, social and political equality is a prerequisite for tolerance.
We ought therefore to understand tolerance not as total toleration of all speech-acts but as the reordering of social relations such that ‘the free development of each is the condition for the free development of all’.9 In the implementation of tolerance contra toleration, two criteria apply. Weak voices should be amplified while hegemonic voices are weakened so that ideological exchange can take place more fairly, and anti-discriminatory voices should be strengthened because discrimination, by limiting the role certain groups can play in what Hardt and Negri have termed ‘the common’, is damaging to the practice of tolerance.10
The actualisation of the resulting radically egalitarian model of tolerance may require social transformation beyond the regulatory level with which liberalism has traditionally been comfortable. In an act of ideological proletarianisation, tolerance thereby shifts from being co-existent with private property to occupying a new position as a component of the assault on property. Tolerance itself sits at the point of interaction between ends and means, ensuring against threats from both left (Stalinism) and right (classical liberalism) that the two do not contradict one another. In drawing on justice for a definition of tolerance and vice versa, possibilities exist for an emancipatory politics along the lines of Marx’s On the Jewish Question; not the wholesale rejection of liberalism of which Marx has sometimes been accused, but rather a dialectical building upon it. To invert the customary logic with which liberals have berated revolutionaries: no politics of permission is complete unless guided by a politics of justice.
Barnaby Raine is a first year History and Politics undergraduate at Wadham College, Oxford.
1 Isaiah Berlin, Two Concepts of Liberty: an inaugural lecture delivered before the University of Oxford on 31 October 1958, (Clarendon Press, 1959). For Berlin’s approving statement on liberalism’s normative judgements see, for instance, p.48 where he says: ‘The liberals of the first half of the nineteenth century correctly foresaw that liberty in this ‘positive’ sense could easily destroy too many of the ‘negative’ liberties that they held sacred’.
2 Herbert Marcuse, ‘Repressive Tolerance’, in A Critique of Pure Tolerance, Wolff, Marcuse and Moore, (Beacon Press, 1969)
3 John Locke, ‘Second Treatise’, in Locke: The Two Treatises on Government, ed. Peter Laslett, (Cambridge University Press, 1988), p. 269: ‘To understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.’
And, Charles de Secondat baron de Montesquieu, The Spirit of the Laws, ed. by Cohler, Miller and Stone, (Cambridge University Press, 1989), p. 114: ‘In the state of nature, men are born in equality.’
4See, for instance, Friedrich A Hayek, The Road to Serfdom, (IEA, 1999), p. 37: ‘Liberalism is opposed, however, to supplanting competition by inferior methods of guiding economic activity. And it regards competition as superior not only because in most circumstances it is the most efficient method known but because it is the only method which does not require the coercive or arbitrary intervention of authority.’
5 Thomas Hobbes, Leviathan, (Continuum, 2006) p. 13: ‘this chapter deals with…our miserable condition in the state of nature’. The rejection of a positive naturalistic normativity is taken further in Karl Marx, Economic and Philosophic Manuscripts of 1844 (Prometheus Books, 1988) p. 70: ‘Do not let us go back to a fictitious primordial condition as the political economist does’.
6Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire, (Princeton University Press, 2006)
7VI Lenin, ‘What Is To Be Done?’, in Essential Works of Lenin, ed. by Henry M Christman, (Dover Press, 1986), p. 57
8John Rawls, Justice as Fairness: A Restatement, (Harvard University Press, 2001) p. 148: ‘social and economic inequalities in background institutions are ordinarily so large that those with greater wealth and power control political life’.
9 Karl Marx and Frederick Engels, The Communist Manifesto, (Verso Books, 2012) p. 27
10Michael Hardt and Antonio Negri, Commonwealth, (Harvard University Press, 2009) p. viii