"Free Speech" revisited

Musk really bothered some people, huh

Elon Musk kicked off another clusterf*ck over the past week, as he expressed his desire to buy Twitter in an effort to support “free speech.” Of course, half the world exploded in fury, and the other half in jubilation. Whatever your feelings are regarding Musk, I think we can all agree the last week has been a comical display of either sociopathic hypocrisy or just a complete and utter lack of self-awareness.

Anyways, I think it’s time we talk about “free speech” again, since it’s been a while since I last did so.

Question 1: What is “free speech”?

Under what conditions can my speech reasonably be called “free”? Obviously I am physically capable to say whatever I want to say; however, I don’t think that’s what people are referring to. When someone is “free to do X” they usually are referring to some socially and/or legally recognized right to perform X, not their physical capability to do X. Yes, my freedom to perform any given action may be limited by disability or poverty or alienation from others, but we’ll return to how this intersects with the “free speech” discussion later.

So, we know that “free speech” means something beyond physical capability to speak. Does it mean freedom from consequences? “You’re free to say whatever you want, but I’m free to punch or shoot you in retaliation” is not indicative of significant freedom of speech. So we can reasonably conclude that freedom of speech refers to freedom from some kind of consequences. At the same time, if I insult my friend and he stops talking to me, have I lost my freedom of speech? It seems odd to claim that facing consequences for insulting one’s friends means one does not have “free speech”. So we know that “free speech” refers to being able to speak while not facing certain consequences from one’s speech. We will return to working out these particular consequences later.

Question 2: Where is “free speech” relevant?

Obviously I can say whatever I want within my own home. The concept of “free speech” doesn’t appear relevant to a group of friends sitting around a fire pit and discussing life. So, when we talk about “free speech”, what settings are we talking about? I think it’s fair to say that “free speech” refers to speech taking place in the “Public Square”. But that begs the question: what is the “Public Square”?

To understand what is “Public”, we must understand the distinction between “private” and “public” (especially because almost no one properly understands this distinction and the “State/private” distinction is nonsense):

The realm of commerce is fundamentally different from the realm of domestic life. While the public sphere is the "open" realm of shared norms, politics, employment, etc, the private sphere is the intimate realm of the domestic and the Home. These spheres are defined by both an orientation towards the broader society as well as by geographic differences (aka they're in different places).

Here we have a substantive and meaningful notion of Private: there are zones, physical regions or particular relationships and/or institutions, that cannot be invaded because they are social Goods.

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So, we must understand that something is "Private" not when it has to do with an individual making a decision, but rather when it has to do with a particular Zone that cannot be infringed upon without compromising some serious moral Good.

The conversations you have with your spouse at home, your child's bedtime, the color you paint your dining room, whether you put up a metal or wooden fence around your property: these are all part of the Private sphere. In Poe v Ullman and Griswold v Connecticut, the Supreme Court determined that the State cannot invade the marital bedroom as it would compromise the more important moral good of marriage. In each of these cases, we have Zones that cannot be infringed upon without compromising some serious moral Good: the sanctity of a marriage, the bond between parent and child, the ability to feel "at home" in one's living space/to have. Privacy is a critical component of our lives.

So we must understand that the Public Square, being part of the Public sphere, refers to the shared space (physical and virtual) for discourse where the society as a whole can coalesce and interact. A physical Public Square is easy to identify: towns have had town squares and meeting halls for centuries, if not eons. Virtual Public Squares are more contentious to identify, obviously; however, I think it is absolutely reasonable to say that the major social media platforms we see (Instagram, Twitter, Facebook, Snapchat, TikTok, YouTube, LinkedIn, etc.) as well as the major gatekeepers of the Internet (Google, DuckDuckGo, etc.) constitute the Virtual Public Square.

Question 3: Which institutions cannot retaliate against “free speech”?

Furthermore, I’ve explained how, in a very real sense, there is no such thing as a “private company”:

Now here comes the key point: Commerce occurs in the Public sphere necessarily.

As I mentioned above, the Private and Public spheres are distinguished by a difference in "orientation" towards broader society. The Private sphere of intimate life and domesticity is "closed" to a significant extent. We intuitively understand this: having sex in public is typically frowned upon (you have brought a Private activity into the Public sphere). On the other hand, the Public sphere of politics, commerce, and social situations is "open" in a meaningful way: we all participate in a set of social norms that are, at the very least, intersubjective and sit outside of the desires of any one individual.

Any institution operating in the Public Sphere, whether that is the State, a corporation, or a charity, is subject to the social norms and rules. It is governed by society as a whole. On the other hand, the Private Sphere is the sphere of individual subjectivity and this is an important Good that must be protected. If an individual wants you off of their personal property, a simple "I don't like you, get out" is sufficient. People need a Zone to express themselves without judgment or ridicule, as subjectivity is an important Good that must be respected. On the other hand, if a business wants you off of its property, it must appeal to some greater moral purpose than just "we don't like you." Even if it is "your" business, you are operating in the Public sphere. You have relinquished your right to govern based on personal sentiment once you enter the marketplace. That doesn't mean the customer always wins. It just means you must abide by a morality more substantive than your personal subjective desires.

In a very real sense, there is no such thing as a "private" company.

In that vein, companies that comprise the Virtual Public Square (and some beyond) cannot justifiably simply do as they wish. “Private property” has never meant that you become demigod of a particular patch of dirt (or data). There have always been (and must always be) limitations on your rights regarding property. And no, “consent” doesn’t cover it:

Now, there are those that argue that "Private" is not tied to a Zone but rather to an individual. The sum of voluntary contracts individuals enter into as individualsconstitute (or at least are part of) the Private sphere. These consensual interactions are grounded in our rights with regards to our relation to property, beginning with self-ownership. Therefore, a private company is a firm that is owned by an individual(s) and engages in voluntary commercial transactions with suppliers, employees, partners, and customers.

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Most of the relationships we have with one another are not contractual (the relationship of parent to child, the bonds of a family and tribe against rival tribes, the romance and intimacy one shares with a lover, the closeness of a true friend, etc) and yet each one lays rights and responsibilities onto us which we may not consent to.

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Murray argues that an individual is only free to make a choice in so far as that individual is not confronted with a "significant threat." What makes a threat significant? Murray breaks this into three parts: threat strength, threat imminence, and wantonness of the threatened. From this, Murray presents the theist with a new problem: the Problem of Hell. Put simply, the threat of Hell, the eternal punishment for defying God's commands, is so great that it becomes impossible for any person's will to be free. Divine Hiddenness, according to Murray, is a way to mitigate this threat: the threat of eternal damnation no longer overrides and destroys the ability for finite individuals to make morally significant choices in their lives. (There are some further issues that arise from Murray's response which you can build reasonable rebuttals for, but those aren't relevant to this particular conversation, so I will leave this topic here for now.)

Now, starvation may not be as significant a threat as eternal suffering, but I would argue that it constitutes a significant enough threat that it makes most contracts with regards to selling one's own labor-power unjust. In fact, the power differentials today suggest that most of the contracts we "consent" to cannot be considered properly just, as the consent was conditioned by the power differentials. At least one party's choice wasn't sufficiently morally significant.

So, I will go so far to say this: regardless of your employment contract or your preferred social network’s terms of service or your bank’s terms & conditions, you cannot be punished for expressing opinions or ideas that are not directly relevant to your work. Some people are limited in discussing material non-public information, others cannot divulge trade secrets, etc.

Sure, someone will argue that firms can fire people who refuse to self-censor as this might present a “less than desirable public image” for the firm and lose them clients. To which I respond, “to hell with your public image.” Whether you’re a republican or democrat, see yourself on the Left or Right, etc. is utterly irrelevant to 99% of work that is done. I could not care less what your position on Biden is when I am asking you for information and analysis regarding the latest earnings release from a firm we cover. Your political stance is useless to me. The same can be said for effectively all jobs. It’s about time we started focusing on actual effectiveness and productivity instead of image and signaling.

Now, most of this section has been discussing the worker-side of the debate: that your opinions, assuming they have no impact on your job performance, should not be relevant to your employment opportunities. On the customer/user side, access to the Public Square must be kept as broad as possible, although small businesses and organizations certainly have more leeway to decide who they want to associate with.

Addendum: The pre-conditions of “free” anything

As I noted earlier, my freedom to perform any given action may be limited by disability or poverty or alienation from others. And so we should always ask: “what kinds of material and ideological pre-conditions support an ethos of free speech”. As Murray noted before:

Murray argues that an individual is only free to make a choice in so far as that individual is not confronted with a "significant threat."

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Now, starvation may not be as significant a threat as eternal suffering, but I would argue that it constitutes a significant enough threat that it makes most contracts with regards to selling one's own labor-power unjust.

And so if we support free speech, we should simultaneously support making sure that individuals and families have significant power compared to the institutions that otherwise dominate their lives. I’ve discussed the importance of decommodifying housing before. I will be going into more depth in the future of how to bring power back to individuals. These questions cannot be separated from questions of “free speech”.

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(Image Source: La Verdad)