April 5, 2022 Reading Time: 11 minutes

Reason and free enquiry are the only effectual agents against error. … Reason and persuasion are the only practicable instruments. To make way for these, free enquiry must be indulged; and how can we wish others to indulge it while we refuse it ourselves.

– Thomas Jefferson, from Notes on the State of Virginia

If ever you were wondering about free speech, you could turn to Twitter. The Twitterati will tell you everything you need to know about free speech and what it means in 280 characters or less. 

First, they will tell you that free speech has nothing to do with anything that happens on Twitter because Twitter is a private company. 

Private companies may control speech as they wish “ya dopes” because the Constitution only protects citizens from censorship by the U.S. government. 

Got that? 

Free speech has been reduced to 45 words. And if you are not a U.S. citizen, those words don’t apply.

Then, they will tell you that critics of private companies like Twitter are, therefore, not only out of bounds but that free speech concerns are an affront to freedom of association (and therefore also disassociation). 

From this, you might think that apologists for digital lynch mobs and private censorship have been worshipping at the altar of libertarian brutalism. Though technically accurate in Abstractionland, narrow construals of free speech overlook more than a few essential points. 

Free Speech: Letter and Spirit

In the United States, it is true that the First Amendment only protects people from government censorship. It is also true that private property rights trump free speech. Property owners generally make the rules about speech on their property, and those rules can be illiberal, arbitrary, and grossly unfair as long as the government is not involved in setting those policies. (The latter point is an important qualifier to which we’ll return).

But the thing about free speech is it has a letter and a spirit, which the Founders understood

So, apparently, does Elon Musk.

The letter is the law, but the spirit transcends the law among conscientious people. And Musk is one of them. He just bought the largest stake in Twitter, which will surely test the Twitterati.

But according to liberals such as John Stuart Mill, we ought to practice speech toleration even in private settings. The ought here is moral, not legal. If one objects to censorship or suppression on private platforms, she appeals to the spirit of free speech, which differs from the First Amendment. One can and should apply moral suasion beyond a strict legal doctrine. We do it all the time. Sure, some people get confused about the difference, but some free speech “scolds” are simply appealing to an established liberal doctrine, which we call toleration.

By analogy, let’s imagine that the same brutalist libertarian criteria applied to people living in the Jim Crow South. Regarding the law, one can agree that property rights and freedom of association should always trump free speech in private settings. So when a racist denies entry to a person of another race, solely because of his race, one might argue that is wrong. To forbid an innocent human being from sitting at a lunch counter or attending a university, even if the owner’s decision comports with a principle of property rights and freedom of association, would still be wrong. That’s because discrimination based solely on race is wrong under most liberal ethics. So if Adam Bates (referenced above) is determined to protect “freedom of association,” but refers to anyone who evokes the spirit of free speech as “scolds,” he must also be prepared by his own narrow rationale, to defend the racist owner of the lunch counter in our example. 

Good luck with that.

By Twitterati logic, anything goes as long as it’s legal, and if it’s legal, you should just shut the eff up. But that sort of thinking excludes too many extra-political and extra-legal standards and practices that give rise to peace and progress. 

The Atlantic’s Conor Friedersdorf tries mightily to find the spirit of free speech among the free-speech reductionists.

Friedersdorf got a number of dismissive responses including this, from someone I generally respect and consider a liberal:

Therefore, the idea that “consequence cultures” has, and ought to have, no limiting principle at all, nothing that checks it, questions it, or stands in its way–according to reductionists. Not even the greatest Enlightenment liberals offer anything of substance to the conversation because they appeal to points on spectra that don’t exist.

What a godawful failure of imagination. 

The “consequences” of consequence culture can therefore be completely arbitrary – the contrivances of a mob or any illiberal march through the institutions – as long as they do their job. That job is to contrive “consequences” that push people into submission, subjection, or silence.

Too many people are “basically okay with that,” which is one reason discourse has turned to shit, not to mention much of social media. I suspect those who tolerate such intolerance enjoy watching Twitterati team sports more than they seek understanding or strive to uphold any principles essential to community life outside The Church of State.

Those who think they have some sort of gotcha when it comes to this two-step about “private companies” might be Brutalist Libertarians, Regime Leftists, or something in between — but they don’t seem to be liberals. To be a liberal, after all, is to think that the best antidote to bad opinion or “misinformation” is higher-quality speech and evidence that tracks truth and respects discourse norms. Liberals seek to protect speech in both spirit and letter to a greater extent, even if such protections can never yield perfect outcomes. The discursive process generally creates better outcomes over time. 

In the domain of morality – which is distinct from politics or law – people have to practice it together for community to form and strengthen. Toleration is a moral practice. It’s no wonder that beltway types never seem to appreciate that. Washington is a cesspit where good opinion is about whom you know and what you’re trying to get out of them. Twitter is just Washington’s domination discourse extended to the centralized internet. In other words, it’s politics all the way down. The moral fibers that help weave people together in community and collective intelligence might as well be dental floss among the purveyors of politics, policy and punditry.

But human progress depends on a dance of cooperation and competition rooted in discourse norms designed for people to track truth. As we have indicated, one such discourse norm is the practice of speech toleration. As Mill writes in On Liberty,

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

Now, I have a Jewish daughter. My appreciation of Mill doesn’t mean I’ll invite neo-Nazis into my home to say hurtful things to her, you know, out of some disproportionate sense of liberal toleration. 

I’m simply arguing we can all do better, even if there are no bright lines or points on a spectrum. For example, it is possible to have moderated platforms with far more liberal speech policies. The owners of said platforms ought to liberalize those policies, notwithstanding real threats from authorities. Likewise, individuals needn’t be so quick to press the block button when someone disagrees with them. Instead, they can try harder to use it with patience and discernment in a framework of liberal toleration. Why? At the very least, contact with diverse ideas, viewpoints, and opinions help one test and strengthen one’s position. 

Illiberalism Goes Viral

Mill’s insights have perhaps no more important application than in our effort to understand an evolving virus during a dangerous pandemic. School marms, censors, and public health authoritarians have too frequently sought to silence dissenting voices, mock alternatives, and belittle justifiable questions about any number of illiberal public health measures. And, ironically, they have also been the greatest purveyors of misinformation.

Some, like the public health authoritarian referenced above, have earned their fifteen minutes for hectoring dissenting views. They frequently resort to ad hominem attacks, or claim that anyone who disagrees with them is X (where X is a conspiracy theorist, a quack, a fraud, or a whatever-wing troglodyte). All too frequently, they do so while wrapping themselves in the mantle of ScienceTM

But most of us who understand science know that it is in great measure a process of conjecture and refutation. Dismissing your interlocutors without engaging their ideas, evidence, or justifiable concerns is the sign of a weak mind that seeks to supplant the scientific process with blue-check rhetoric. 

Why the Spirit of Free Speech?

Some might argue that the virtue of toleration is just so much Enlightenment guff, i.e., that we’ve moved onto a post-truth paradigm. But the virtue of toleration will always be a virtue for reasons that include the following:

  1. You might be wrong, and those with whom you think you disagree might be right.
  2. You might come to understand why someone might be justified in holding another view, even if you disagree with it.
  3. Tracking the truth requires interrogating claims from different points of view.
  4. Minority perspectives frequently turn out later to be the majority perspective (e.g. with the lab-leak theory).
  5. Skepticism is part and parcel to scientific inquiry, so we need skeptical voices.
  6. Humans are different, one to the next, and come with different values. Pluralism exists, and we are at our best when we are able to integrate others’ perspectives as facets of a greater truth that would be hard to see without taking on diverse points of view.
  7. Truth tracking requires evidentiary input, even if the sum of evidence makes a claim inconclusive. 
  8. Experts have no monopoly claims on truth.
  9. Authorities have no monopoly claims on truth.
  10. You have no monopoly claims on truth.

None of the above requires that we overturn the fundamental rules of free association and private property. Indeed, when it comes to the primacy of these principles, the free-speech reductionists certainly have a point. But adding the spirit of free speech is a yes/and proposition, not an either/or. 

Social media platforms can legally continue to engineer ideological monocultures and customer flight. They can legally set their own rules and shit all over the spirit of free speech and open inquiry. But to the extent that they do so, they choke off the processes on which human progress depends.

Free-speech reductionism is a way of “misleading with facts”. As polymath Daniel Schmachtenberger points out:

While fact-checking is necessary, it is often not enough to provide the whole picture. Under current conditions of escalating culture and information war, facts themselves have become weapons. Neither propaganda nor bad faith communication require the speaking of falsehoods. It is often more effective to mislead and misinform through a strategic use of verified facts. The ability to critique and correct for the misuse of facts in public culture is an essential component of the democratic way of life.

Unfortunately, today it is standard practice for both institutions and individuals from all sectors of society to offer strategically cherry-picked and decontextualized facts, set within a predetermined emotional or ethical frame.

The decontextualized fact is 45 words in the Constitution explained in fewer than 280 characters. But this fact, though true, gets plucked from a wider moral context of real people seeking truth, struggling to contribute to our collective intelligence.

Warnings from the Dissident Left

At least two blocs are forming on the left. I call these the Regime Left and the Dissident Left, respectively. 

The Regime Left is hellbent on protecting the proclamations of authorities, even if they have occasionally to pretend to care about the First Amendment. They are unmitigated authoritarians. So if the proclamations of power get disseminated via private platforms, they can shriek about censorship being something only government does, or bury their heads in the sand like this Regime Leftist from the Ivy League who, bizarrely, claims to be an expert on fascism.

The Dissident Left knows better. 

Even though they are still committed to redistributive measures, they know that it would be a terrible idea to lose the spirit of free speech and toleration. Among the Dissident Left, I would include Glenn Greenwald, Bari Weiss, Andrew Sullivan, Jim Rutt, Krystal Ball, Saagar Enjeti, Russell Brand, Michel Bauwens, Matt Taibbi, and Brett Weinstein.

Not only does the Dissident Left understand the ten reasons I listed above under “Why the Spirit of Free Speech?” they see clearly that:

  • The state is the greatest purveyor of misinformation and disinformation, so it makes little sense to set policies around the proclamations of state actors and call it truth.
  • Government authorities already have their fingerprints on the social media platforms, which is unconstitutional.
  • Any apparatus of censorship, if shaped by state actors making threats, is indeed a violation of the First Amendment.
  • A state-tainted apparatus of censorship can be coopted by authorities you hate, right after the next election.

The problem with tolerating too much intolerance is that once that evil Djinn escapes, it’s harder to put it back. Tacit acceptance that unofficial voices should be suppressed on grounds of protecting the public from “misinformation” opens the door to government truth squads who will come to see all challenges to their authority as the challengers shouting fire in a crowded theater. Those 45 words will soon be as good as dead.

Community Mitosis

People who can juxtapose the spirit of toleration with deference to free association and private property, while uncomfortable with the suppression of liberal discourse in private settings, are still comfortable with the idea of “exit.” Yes, it sucks to lose 100K followers because some petty authoritarian at Twitter suspends your account. But at the end of the day, that is the price of having a society that protects private property and free association over free expression.  

If we do nothing to protect private speech, though, social media will fracture into affinity groups that talk only to each other and share knowledge less. For authoritarians who fancy they possess the One True Way, anti-pluralism is a benefit. (All this talk of “diversity” is just talk.) To a liberal, though, too much social fracturing comes at a serious cost. Discursive monocultures impede the feedback mechanisms the human community needs to improve collective intelligence. Members of cloistered, narrow-minded affinity groups tolerate each other less and learn less from each other. 

That’s a shame. Yet here we are.

When Elon Musk asked, “What can be done?” the options would have been A) persuade social media executives to change their policies, B) build something new, or C) buy a controlling stake in an existing platform. 

Musk opted for C).

Otherwise, if people can’t have a voice, they will eventually have to exit. And in exiting, they can at least seek out platforms such as the Samizdat Project or Presearch that comport with their conceptions of the good. Such, of course, is only possible if constitutional free speech, free association, and private property remain fundamental to the legal order. But we have to confront the reality that authorities routinely threaten these principles.  

And that’s perhaps the most unfortunate aspect of these sanctimonious reminders about what the Constitution says. Free-speech reductionists like Anne Wheaton, Todd Hagopian, and Adam Bates deny that the spirit of free speech also animates our liberal order. I worry they don’t see that Constitutional Free Speech also happens to be under threat.

Corporate censorship as a proxy for government censorship is just a monstrous hybrid. If these Twitterati continue in their free-speech reductionism, they will at best be unwitting midwives to a fractured collective intelligence. At worst, they’ll open the door to an illiberal era that started on private property. 

Musk’s acquisition is a positive development for free speech, though perhaps not so much for “consequence culture.” Digital mobs will still be able to ruin people’s lives. But as long as Musk liberalizes Twitter’s speech policies, the free-speech reductionists will have to decide whether they want to stick around for the steady diet of real diversity.

Max Borders

Max Borders

Max Borders is the author of The Decentralist: Mission, Morality, and Meaning in the Age of Crypto, After Collapse: The End of America and the Rebirth of Her Ideals, and The Social Singularity: A Decentralist Manifesto.

Max is also co-founder of the event experience Future Frontiers and founder of Social Evolution, an organization dedicated to liberating humanity and solving social problems through innovation.

Follow him on Twitter @socialevol

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