The University of Columbia. Would it be better for institutions to engage pro-Palestinian protestors in constructive dialogue? Ron Adar / Alamy Stock Photo

The philosophy of free speech is complicated—and that’s OK

Gaza protests force us to confront the limits of acceptable speech. There are no easy answers—and nor should there be
May 28, 2024

Student protests against Israel’s war in Gaza—and the violent clashes they have provoked on campuses in the US—raise profoundly difficult questions: when does criticism of Israel cross into antisemitism? Does hateful antisemitic speech ever deserve protection? How should universities balance respect for free speech with their obligation to provide a safe environment for all? 

As the political climate continues to boil, these questions are presented as though they have clear-cut answers, with the suggestion being that anyone who fails to parrot such answers is guilty of gross moral failure. When the presidents of Harvard and the University of Pennsylvania struggled in front of the US Congress to say unequivocally whether calling for the genocide of Jews violated their school’s policies, they were excoriated for their supposed lack of “moral clarity”. Both replied by saying “it depends”, an answer that helped cost them their jobs. But what if the truth is that it does, often, depend—on context, on circumstance, on our legal, moral and philosophical starting points? What if that is the more honest, morally sensitive reply to many of the free speech questions tearing us apart? 

While we can all agree antisemitic hate speech should be treated no differently than other hate speech, it is much harder to agree on when sincere political speech becomes unacceptably hateful and what to do about it. The problem is not only that the slogans and symbols used by the protesters in the UK, US and elsewhere mean different things to different people, but also that the underlying values and principles at play interact in complex ways, and we have no universal moral algorithm with which to sort them out.

There are, of course, points of consensus, for instance that the state may sometimes legitimately restrict harmful speech without running afoul of free speech values. But just what are these values? 

Moral clarity should not be confused with black-and-white certitudes 

For many, the paramount issue is the individual’s right to self-determination as a speaker, listener and thinker. From this perspective, the idea that the state should get to decide what we are able to say, hear or consider represents a dangerous affront to our basic liberties, the free exercise of which allows us to figure out for ourselves what we think is right, good and fair. For others, the chief problem is the way that state limitations on speech hamper our collective pursuit of truth.

But many philosophers go beyond an appeal to individual autonomy or truth, arguing that free speech is justified by the role it plays in democracy. Some claim free speech promotes the values democracy is meant to serve (for example, tolerance and pluralism); or that it is vital to citizens’ capacity to hold power to account. Still others appeal to the democratic virtues it supposedly instils. If we are by nature inclined to ostracise those who think differently, we might need freedom of speech in order to practice the respect for difference that fortifies our commitment to liberal principles.

Drawing on any of these perspectives, one might defend the free speech absolutism associated with the US First Amendment. The late US legal philosopher Ronald Dworkin argued that, by banning hateful ideas, the state excludes those who defend them from democratic deliberation, undermining democratic legitimacy. The famed 19th-century free speech champion John Stuart Mill held that the best way to neuter dangerous ideas is through exposing them to public scrutiny, while outright legal suppression can aggravate the danger. 

Of course, governing a campus is not the same as governing a state. Still, though, in line with Mill or Dworkin, many hold that proscriptions on campus speech should be a last resort and as narrow as possible. For them, it is better for schools to engage pro-Palestinian protesters in dialogue, rather than prohibiting the use of phrases such as “From the river to the sea…” But more proscriptive approaches to hate speech also have robust philosophical backing. The esteemed legal philosopher Jeremy Waldron argues that hate speech is best understood as a form of group defamation. He believes the state has a legitimate role in preventing it because it erodes the rights and equal moral standing of citizens. For him, the same democratic values that justify free speech also determine its rightful limits. 

What does this reasonable disagreement on the issues reveal? That you can stand against hate while holding a variety of different, reasonable views on the limits of free speech, on campus or elsewhere. 

In this fevered political moment, there is an understandable desire for clear principles that gratify our us-versus-them political passions. But moral clarity should not be confused with black-and-white certitudes. What such clarity more often reveals is a tragically messy world, where we must weigh competing moral concerns against each other in the face of staggering complexity. In that context, it does us all good to appreciate the truth in that simple, now notorious, phrase: “it depends.”

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