Published online by Cambridge University Press: 04 May 2021
The classical liberal doctrine of free expression asserts the priority of speech as an extension of the freedom of thought. Yet its critics argue that freedom of expression, itself, demands the suppression of the so-called “silencing speech” of racists, sexists, and so on, as a threat to the equal expressive rights of others. This essay argues that the claim to free expression must be distinguished from claims to equal speech. The former asserts an equal right to express one’s thoughts without interference; the latter the right to address others, and to receive a hearing and consideration from them, in turn. I explore the theory of equal speech in light of the ancient Athenian practice of isegoria and argue that the equality demanded is not distributive but relational: an equal speaker’s voice should be counted as “on a par” with others. This ideal better captures critics’ concerns about silencing speech than do their appeals to free expression. Insofar as epistemic and status-harms provide grounds for the suppression and exclusion of some speech and speakers, the ideal of equal speech is more closely connected with the freedom of association than of thought. Noticing this draws attention to the continuing—and potentially problematic—importance of exclusion in constituting effective sites of equal speech today.
I am grateful to Robert Cheah for his sharp insights and editorial assistance, and to the journal editors and other contributors to this volume for their guidance and constructive criticism. An earlier version of this essay was presented as a lecture to the Research Group in Constitutional Studies at McGill University. I am especially grateful to Jacob Levy and Víctor Muñiz-Fraticelli for their comments and encouragement.
1 Terms used interchangeably by specialists and laypeople alike. I discuss the historical reasons for, and the conceptual costs of, this conflation in Section II.
2 See, for example, the United Nations’ Universal Declaration of Human Rights (1948), Articles 18 and 19; the European Human Rights Convention (1953), Articles 9 and 10; and the Canadian Charter of Rights and Freedoms (1982), Article 2a-b. In this, they follow the First Amendment (1791) to the U.S. Constitution, in which the freedom of speech comes second to free exercise.
3 For example, Rawls, John, A Theory of Justice: Revised Edition (Cambridge, MA: Harvard University Press, 1999)Google Scholar; Scanlon, T. M., “A Theory of Freedom of Expression,” Philosophy and Public Affairs 1, no. 2 (1972): 204–226 Google Scholar; and Ronald Dworkin, “Is There a Right to Pornography?” Oxford Journal of Legal Studies 1, no. 2 (1981): 177–212.
4 See Strossen, Nadine, Hate: Why We Should Resist It with Free Speech Not Censorship (Oxford: Oxford University Press, 2018)Google Scholar; Chemerinsky, Erwin and Gillman, Howard, Free Speech on Campus (New Haven, CT: Yale University Press, 2017)CrossRefGoogle Scholar; and Jonathan Haidt and Greg Lukianoff, The Coddling of the American Mind (London: Penguin UK, 2018).
5 MacKinnon, Catharine, “Frances Biddle’s Little Sister,” in Feminism Unmodified (Cambridge, MA: Harvard University Press, 1987), 163–97Google Scholar (my emphasis). For criticism of the idea of “silencing” speech, see Ronald Dworkin, “Women and Pornography,” The New York Review of Books (October 21, 1993): 36–42. For a defense, see Rae Langton, “Dangerous Confusion? Response to Ronald Dworkin,” in Sexual Solipsism: Philosophical Essays on Pornography and Objectification (Oxford: Oxford University Press, 2009), 65–74, and Maitra, Ishani, “Silencing Speech,” Canadian Journal of Philosophy 39 (2009): 309–338.CrossRefGoogle Scholar
6 MacKinnon focused on pornography. MacKinnon, Catharine, Only Words (Cambridge, MA: Harvard University Press, 1993)Google Scholar. For the analogy with racial hate speech, see Ishani Maitra and Mary Kate McGowan, “Introduction and Overview,” in Speech and Harm (Oxford: Oxford University Press, 2012) and Waldron, Jeremy, The Harm in Hate Speech (Cambridge, MA: Harvard University Press), 89–92.Google Scholar
7 Cohen, Joshua, “Freedom of Expression,” Philosophy and Public Affairs 22, no. 3 (1993), 207–263.Google Scholar
8 Bejan, Teresa M., “Two Concepts of Freedom (of Speech),” Proceedings of the American Philosophical Society 163 (2019): 95–107.Google Scholar
9 Ruth Chang uses the phrase “on a par” to describe cases wherein two things are evaluatively comparable with respect to some covering consideration, yet there exists no determinate answer to whether one is better or worse, or both are equally good. Chang, “The Possibility of Parity,” Ethics 112, no. 4 (2002): 659–88. In what follows, I build on Chang’s conception of parity to describe an evaluative relation in which different persons are viewed as “peers” of comparable, but not identical, worth or weight in the eyes of others. While I use both terms, “peer” and “equal,” to refer to those who share a rank or status, the former implies high or dignified status while the latter can be high or low. Chang denies that these terms can be used synonymously because, in her technical account, parity excludes equality.
12 Mill, John Stuart, “On Liberty” in J. S. Mill: “On Liberty” and Other Writings, ed. Collini, S. (Cambridge: Cambridge University Press, 1989).Google Scholar
13 Mill, “On Liberty,” 15.
14 See the examples discussed by Simpson, Robert and Srinivasan, Amia, “No Platforming,” in Lackey, J., ed., Academic Freedom (Oxford: Oxford University Press, 2018)Google Scholar. Cf. Mari J. Matsuda, Words That Wound: Critical Race Theory, Assaultive Speech, And The First Amendment (Boulder, CO: Westview Press, 1993) and Waldron, The Harm in Hate Speech.
15 Rabban, David, Free Speech in Its Forgotten Years: 1870–1920 (Cambridge: Cambridge University Press, 1997)Google Scholar.
16 The text of the First Amendment itself (which was a grab bag product of revision by committee) makes an important distinction between “speech” and the “press.” Ashutosh Bhagwat, “Posner, Blackstone, and Prior Restraints on Speech,” Brigham Young University Law Review (2015): 1151–82.
17 Cf. MacKinnon, Only Words; Matsuda, Mari, “Public Response to Racist Speech: Considering the Victim’s Story,” Michigan Law Review 87, no. 8 (1989): 2320–81CrossRefGoogle Scholar, and Matsuda, ed., Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder, CO: Westview Press, 1993). Cf. Bernard Williams, ed., Obscenity and Film Censorship (Cambridge: Cambridge University Press, 1981), §6.64.
18 Austin, J. L., How to Do Things with Words (Oxford: Clarendon Press, 1962)Google Scholar; Rae Langton, “Beyond Belief: Pragmatics in Hate Speech and Pornography,” in Speech and Harm, ed. Ishani Maitra and Mary Kate McGowan (Oxford: Oxford University Press, 2012), 72–93, Waldron, The Harm in Hate Speech, 59, and Mary-Kate McGowan, Just Words, 12–18.
19 See Maitra and McGowan, Speech and Harm, 7. Cf. MacKinnon, Only Words, 31.
20 Langton describes this as “illocutionary disablement.” Langton, “Speech Acts and Unspeakable Acts”; Hornsby, Jennifer and Langton, Rae, “Free Speech and Illocution,” Legal Theory 4 (1998): 21–37 CrossRefGoogle Scholar; and Mary-Kate McGowan, Just Words, 61–73. Cf. Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Clarendon, 2007) and Kristie Dotson, “Tracking Epistemic Violence, Tracking Practices of Silencing,” Hypatia 26 (2011): 236–57. For an alternative account, see Maitra, “Silencing Speech.”
21 Cf. Sinopoli, Richard C., “Thick-Skinned Liberalism: Redefining Civility,” American Political Science Review 89, no. 3 (1995): 612–20CrossRefGoogle Scholar. In recent years, theorists otherwise committed to the classical doctrine have drawn attention to the importance of the recipients of speech beyond noninterference, as equal participants in “the communicative relation.” Cf. Seana V. Shiffrin, Speech Matters: On Lying, Morality, and the Law (Princeton, NJ: Princeton University Press, 2014).
22 Christiano, Thomas, “Democracy as Equality,” in Estlund, David, ed., Democracy (London: Wiley, 2002), 31–50.Google Scholar
23 Anderson, Elizabeth, “The Epistemology of Democracy,” Episteme 3, no. 1 (2006): 8–22 CrossRefGoogle Scholar. Compare Anderson’s decision to label her initial formulation of relational egalitarianism as “democratic equality.” Elizabeth Anderson, “What Is the Point of Equality?” Ethics 109, no. 2 (1999): 287–337.
24 The democratic case for free speech was influential among the early twentieth-century jurists responsible for modern First Amendment jurisprudence. See Werhan, Keith, “The Classical Athenian Ancestry of American Freedom of Speech,” The Supreme Court Review 1 (2008): 293–347.CrossRefGoogle Scholar
26 See “Ἰσηγορία,” The Online Liddell-Scott-Jones Greek-English Lexicon, http://stephanus.tlg.uci.edu/lsj/#eid=52418 (accessed July 30, 2018).
27 For a good overview of the distinction, see Arnaldo Momigliano, “Freedom of Speech in Antiquity,” in P. Wiener, ed., Dictionary of the History of Ideas, 5 vols. (New York: Charles Scribner’s Sons, 1974), 2.252–263, Saxonhouse, Free Speech and Democracy in Ancient Athens, and the collected essays in I. Sluiter and R. Rosen, eds., Free Speech in Classical Antiquity (London: Brill, 2004).
28 Homer, Iliad, Bk. II.
29 Xenophon, Memorabilia, III 6.1, in Xenophon IV, ed. E. C. Marchant (Cambridge, MA: Loeb Classical Library/Harvard University Press, 2013).
32 Herodotus, The History, trans. D. Grene (Chicago: University of Chicago Press, 1987), v. 78.
33 Cf. Cohen, “Freedom of Expression.”
34 Nancy Fraser describes this as the “third-dimension” of justice, whereby we establish “criteria of social belonging, and thus determin[e] who counts as a member … [of] the circle of those entitled to a just distribution and reciprocal recognition.” Fraser, Scales of Justice, 16–17.
35 Waldron, Jeremy, One Another’s Equals: The Basis of Human Equality (Cambridge, MA: Harvard University Press, 2017)CrossRefGoogle Scholar. Christiano, “Democracy as Equality.” Cf. Niko Kolodny, “Rule Over None: Part 1,” Philosophy and Public Affairs 42, no. 3 (2014): 195–229, and “Rule Over None: Part 2,” Philosophy and Public Affairs 42, no. 4 (2014): 287–336.
36 Aristotle, Politics, trans. C. D. C. Reeve (Indianapolis, IN: Hackett, 1998), III.9.
37 Ibid., I.13.
38 On representation in Athens, see Ober, Demopolis, 19.
39 Aristotle, Politics, III.11.
40 Anderson, “The Epistemology of Democracy.”
41 Schwartzberg, Melissa, Counting the Many: The Origins and Limits of Supermajority Rules (New York: Cambridge University Press, 2014).Google Scholar
42 Ibid., 39.
43 Ibid., 27.
44 Ibid., 19–20. Compare this with Ober, “Democracy’s Dignity.”
45 Chang, “The Possibility of Parity.”
46 See Waldron, One Another’s Equals, and the essays collected in Uwe Steinhoff, ed., Do All Persons Have Equal Moral Worth? On “Basic Equality” and Equal Respect and Concern (Oxford: Oxford University Press, 2015).
47 “Parity, n. 1.” OED Online. Oxford University Press, September 2019. Web. September 30, 2019.
50 Cf. Waldron, One Another’s Equals, 117–20.
51 This is the sense of equality expressed by John Locke in his Two Treatises of Government (II.2.11). I am grateful to Bas van der Vossen for highlighting this connection.
52 The charge of graphe paranomon, which operated as a form of judicial review as well as a way of prosecuting one’s political opponents for introducing legislation contrary to existing law, similarly relied on attending to and judging a citizen’s speech post facto. For an overview, see Mogens Herman Hansen, The Athenian Democracy in the Age of Demosthenes (Oxford: Blackwell, 1991), 205–210.
53 Ober, Demopolis, 33. Compare with Pierre Rosenvallon on the “blind spot” of French Republicans’ commitment to a “society of equals” when it came to women. Pierre Rosenvallon, The Society of Equals (Cambridge, MA: Harvard University Press, 2013), 71.
55 Twitter and Facebook are called “platforms” in a call-back to ancient technology, but they operate like presses—reproducing and disseminating the written word with inscrutable algorithmic editorial oversight.
56 It makes sense that so much controversy in the United States should focus on private universities as sites of speech that sit somewhere between the public and private sphere (public universities are covered straightforwardly by the First Amendment). Tellingly, debates about free speech on campus often rest on disagreements about the point and purpose of universities as free associations. Are they “safe spaces”? Or fora for “uncomfortable learning”? Cf. Haidt and Lukianoff, The Coddling of the American Mind.