The right to free speech is part of our American identity, but what if some forms of speech use this idea of freedom against us? Increasingly, certain forms of speech — hate speech and disinformation in particular — threaten our society and the many freedoms we might take for granted.
In a new paper published in the peer-reviewed journal Jurisprudence, UC Davis philosopher and legal scholar Mark Reiff gives new insight into the source of the right to free speech and the limits that this right contains. The paper explains how these limits show us that hate speech and disinformation are not protected by the right, but rather must be limited to ensure all of our fundamental freedoms.
“We have to wake up to the conditions we are now in,” said Reiff, a research professor of philosophy in the College of Letters and Science. “Hate speech and disinformation are a real problem. People who claim you can say whatever you want in a liberal democracy are misunderstanding what freedom of speech is intended to guarantee in a free society.”
Untangling free speech and disinformation
Lies can have dangerous consequences. In 2016, a man with an assault rifle entered a Washington, D.C. pizzeria to search the building for the children an internet conspiracy theory convinced him were being held there. On a much bigger scale, campaigns of hate speech and disinformation provoked widespread violence and even genocide in Nazi Germany, Rwanda and the former Yugoslavia.
How could we live in a society where you can’t make a false claim about a dessert topping or floor polish, but you can falsely claim that the presidential election was stolen? There’s a difference between saying something that is reasonably mistaken but harmless and saying something that is wildly implausible and dangerous, like claiming that Hillary Clinton is running a pedophile ring out of the basement of a Washington D.C. pizzeria. — Reiff
Reiff argues that the idea of protecting all forms of speech in a free society regardless of their content is actually illiberal. Hate speech and disinformation can be used to sow division and hatred and thereby undermine democracy. This has been the approach of Russia’s Internet Service Agency, which has been found to be actively spreading disinformation and division in the U.S. and other countries.
The claim is that this is done in the name of freedom, but when liberal democracies fall apart, their many freedoms are typically replaced by an authoritarian social structure that is radically different and much less free.
“There is a much wider range of permissible behavior in a liberal society than there is in an authoritarian society,” said Reiff. “Authoritarians think that to be free, people must behave in a very specific, uniform, and inflexible way. Only then can they realize their true potential, and if they cannot recognize this themselves, then it is the job of the government to force them to be free.”
Liberal society and the principles that make free speech possible
When Reiff talks about liberal society or liberalism, it’s not in the sense of beliefs that are politically “liberal,” “progressive,” or even “leftist.” In a liberal society, people can have wildly different opinions, but they still embrace the same fundamental values. They just disagree about how best to apply those values to real-world situations.
Some fundamental principles of liberalism
- A commitment to toleration, neutrality, equality and freedom
- A commitment to the separation of religious and political authority
- The belief that all members of a political community should have an opportunity to participate in political decision-making under conditions of full information
- The view that the purpose of public discourse and debate is to persuade others of the rightness of one’s position by resorting to arguments that one’s opponents could not reasonably reject
- The view that the rule of law applies even to the rich and powerful
- That belief that empirical evidence rather than emotion and pre-moral ideology should have primacy in forming our reasons for action and belief
- The idea that punishment should be informed by the principle of proportionality
- The belief that the individual, not the community, is the fundamental social unit of moral responsibility and moral concern
“In a liberal society, people can disagree about what their fundamental principles require,” said Reiff. “They might want different public policies on abortion, immigration or government spending, but it’s important that the source of the disagreement is about how we should interpret the relevant fundamental principles, and not about what those fundamental principles are.”
In his paper, Reiff provides an extensive list of fundamental principles that define liberal societies. The full list is extensive and detailed. It includes tolerance, neutrality, equality and freedom. It includes the idea that everyone is entitled to meaningfully participate in political decision-making with full information. It includes the view that politics and religion should remain separate, and a commitment to applying the rule of law to everyone equally.
“But liberalism doesn’t say you have to tolerate all plans of life,” said Reiff. “For example, a serial killer might say, ‘I was born this way, that’s just my plan of life, don’t oppress me by preventing me from pursuing it.’ But most people would say such a plan of life is not reasonable, so it does not have to be tolerated. The reasonableness of the plan of life always matters under liberalism.”
Free speech, hate speech and the test of what’s reasonable
Reiff argues that freedom of speech is not an independent, free-standing right, which we then try to tie to the fundamental principles of liberalism as an afterthought. Instead, we begin with these fundamental principles and then see what kind of right to free speech these fundamental principles would produce.
“You cannot work the other way round,” said Reiff. “You have to start with the fundamental principles that everyone generally accepts in a liberal society, and then ask what would a right to free speech that is consistent with these principles look like? Otherwise, you will end up with an ad hoc right that is simply the product of someone’s pre-moral personal preferences, not one which is consistent with our general moral values.”
All these general principles are infused with the idea of reasonableness under liberalism. And while this idea may seem a little vague, it’s not. There are countless examples of what is reasonable in real-world situations in the law. These examples provide detailed guidelines that we can use to determine when speech moves from being reasonably and therefore tolerably mistaken, to being dangerously misleading and intolerably hateful.
The legal system’s own rules show us how to do this. They strictly control what type of evidence can be used to inform a judge or jury’s decision. Rather than assuming truth will somehow emerge on its own from some sort of unregulated free-for-all, legal proceedings use a very careful and regulated approach.
“In every other area of behavior in a liberal society reasonableness is the criteria of regulation, and we have centuries of jurisprudence explaining what’s reasonable and what’s not,” said Reiff. “We do this all the time in other areas. It’s crazy not to do this in the free speech area considering that hate speech and disinformation can do so much damage.”