A recent piece by Max Fawcett in the National Observer invokes a number of common tropes about freedom of expression. One, which I address here, is that when people are punished for what they have said or written, they have “not been denied that right. But neither [have they] been excused from the potential consequences associated with exercising it”. The implication is that it is just as absurd ― perhaps childish ― to try to escape punishment for one’s words as it is to escape the consequences of one’s actions.
The context of Mr. Fawcett’s piece is a dispute between Jordan Peterson and the Ontario College of Psychologists, which ― like pretty much everything else Dr. Peterson-related ― I don’t care about. But this response to all manner of speech-related controversies is widespread. It is, in these terms, particularly favoured on the social justice-minded left: see, for instance, the comments of a man whom the BBC describes as engaged in “publicly shaming” people for real or perceived transgressions against progressive propriety and “ultimately getting the people ‘cancelled'”: “These times of doing whatever you want without consequences are over”, the BBC quotes him as saying. But, as Cathy Young points out just today in The Bulwark, the political right, especially in the United States, is also quite willing to visit retribution on those who say and write things it doesn’t like, even as it poses as a defender of free speech.
Why is the claim that punishment for the expression of ideas is just “consequences” and, as such, must be accepted by any reasonable adult wrong? Because the whole point of freedom ― of any freedom, not only freedom of expression or speech, but also freedom of religion, of assembly, or association for example ― is precisely freedom from certain kinds of consequences. And it is only, I think, with freedom of expression that anyone would dispute this. Imagine saying “you’re free to go to Church on Sunday, but you must accept the consequence of being fined for it”; or, “you’re free to form a union, but you must accept that you’ll be jailed if you do”. This is arrant nonsense, and everyone will instantly recognize that it is just that. The freedom of expression is no different: it is also, of course, an immunity from at least some kind of consequences attaching to its exercise.
Now, the real issue ― and again, this is true of freedoms other than that of expression ― is what consequences, imposed by whom, are off-limits. At one end of the spectrum, almost everyone agrees that it’s wrong for government to jail people for what they say, at least in most circumstances; it’s wrong to fine people for going to this or that house of worship, or to beat them up for holding a peaceful protest in a public square. At the other end, contrary to the caricature prevalent in social-justice circles, very few people, if anyone really, think that pure criticism is a forbidden consequence for speech. Again, other freedoms are mostly similar, though there is, it seems to me, a tendency in some quarters to view any criticism of (some) religious beliefs as categorically wrong; indeed, there is a perplexing overlap between the people who believe this and those who argue that even state-imposed or -backed punishment for speech is just “consequences”.
The difficult questions, when it comes to expression, are of two main sorts. First, what are the exceptions to the general principle that the state should not punish people for what they say? I don’t think anyone who accepts the legitimacy of the state denies that there are some exceptions. Fraud is committed through speech or writing, for example. But there are issues on which reasonable people disagree in good faith; hate speech is a classic example. I’m inclined to say, though, that this category of hard questions is actually a comparatively narrow one.
The bigger and perhaps more socially provocative one has to do with the vast middle part of the spectrum between state-imposed punishment on the one hand and pure criticism on the other. Does an employer have the right to fire an employees for their politics? Can a social media platform censor a story it considers to be disinformation, or indeed ban a user inclined to share such stories? Should people be able, not just to criticise someone who they think has crossed a line that should not be crossed in polite society, but to seek to get them fired from their job? How about doxxing them?
What makes these questions even more fraught is that each of them, in truth, is at least two questions, if not more. Does an employer have a legal right to fire an ideological dissident? Does an employer have a moral right to do it? And, perhaps, even if there is a moral right, should a good employer forbear from exercising it? And so on. Far too many people confuse the legal and moral issues, or think that the law should precisely track (their) morality, but here as elsewhere there may be perfectly good reasons for law and morality to diverge.
This is the stuff the “culture war” about freedom of expression is largely about; the legal debates, less so, but increasingly in the last few years. There are genuinely difficult questions there. Questions about line-drawing, for example, such as when, if ever, what would be perfectly legitimate criticism coming from one person becomes a morally reprehensible pile-on when engaged in by a large group. Questions about clashing rights, such as those that arise in relation to employers or social media, who have expressive interests of their own to set up against those of employees and users. Questions about the nature and relevance, or not, of market competition and monopoly. And no doubt many others.
When such difficult questions are debated, as they should be, nobody is served by amalgam, clichés, and misdirection. The tired claim that punishment for speech at the hands of the state ― or for that matter at the hands of an online mob ― is just “consequences” is all of these things. Yes, of course a punishment is a consequence, but if we believe in freedom of expression at all, we are committed to the principle that not every consequence that can be visited on a person for what he or she says or writes is just. What we want to know is what consequences are just, and when. Let’s talk about that.
I will try to address a particular set of questions related to this, also based on Mr. Fawcett’s piece ― specifically, on his claim that “[t]here is nothing unjust or illiberal about professional organizations enforcing codes of conduct for their members” ― in a separate post. Stay tuned.