Ep. 187: The Limits of Free Speech (Part Two)

0:07 Mark: You're listening to the Partially Examined Life, a podcast by some guys who at one point set on doing philosophy for a living, but then thought better of it. Our question for episode 187 is what are the appropriate limits for free expression? And we read the Stanford Encyclopedia article on freedom of speech by David Van Mill, Stanley Fish's article There's no Such Thing as Free Speech and It's a Good thing too from 1994, and Joel Feinberg's article Limits to the Free Expression of opinion from 1975. For more information, please check out partiallyexaminedlife.com this is Mark Linsenmayer, neither hater nor player, in Madison, Wisconsin.

0:43 Seth: This is Seth Paskin practicing non violation of the harm principle in Austin, Texas.

0:48 Wes: This is Wes Alwan in Cambridge, Massachusetts.

0:50 Dylan: This is Dylan Casey in Madison, Wisconsin. Hey guys, before we get started, I got something I gotta share with you. I got this book by Michael Perry, who's a Wisconsin author called Montaigne in Barn Boots for My dad for Christmas. And I got it for myself and I haven't read it yet, but we have a shout out in that book.

1:08 Mark: Really?

1:09 Dylan: On page 29, he says. In an episode of the Partially Examined Life podcast, one of the hosts comments on Montaigne's lovely non aristocratic air, but questions whether he understood how privileged he was. Despite all I wrote above, I believe he did understand.

1:23 Wes: So that's the quote.

1:25 Mark: Hmm, nice.

1:26 Dylan: So I thought it was kind of cool.

1:28 Mark: Yeah, I'm glad he exercised his freedom of speech. So this is a topic oriented one. We should not spend a lot of time. We've already done free speech a little bit like with Spinoza and then with Mill. In fact, the Mill episode was going to be the free speech episode, but we decided to just make it on Mill. But in both the Spinoza and the Mill, we ended up spending some time kind of arguing over our textual interpretations, which is our normal thing to do for a text oriented episode. I would think in this we maybe want to kind of set those aside a little bit and try to focus mostly on the ideas here.

Because we had, I mean, we have these two main texts, the Feinberg and the Fish, that I'm sure we'll quote quite a bit from. We had a whole bunch of other optional things and we had the Stanford Encyclopedia article that kind of sums up a lot of the debates that have been going on. It'd be interesting to see us again try our hand at a actually topic oriented thing and putting forward what our opinions are or laying out Here what the live issues are and not getting sucked into textual analysis. That seem reasonable?

2:36 Wes: It does. Especially in light of the fact that I didn't really choose the greatest readings. I think Feinberg and Fish were the right people. You know, Feinberg wrote a book in which he spends some time on. I think he calls it the Offense Principle and Where Things Stand with Hate Speech. And I sort of imagine when I looked at his article, I was very happy to find that article because I thought it was kind of a compressed version of his book. And I somehow hallucinated that I saw the relevant part in there, but it wasn't that relevant. And the fish. He's the right person, but I'm not sure it's the strongest sort of argument that we encounter there. But yeah, I think doing this topically is the right way to go.

3:16 Dylan: I'll be interested. I really like the Fish article.

3:19 Seth: Me too.

3:20 Wes: I thought it was pure sophistry.

3:22 Mark: So is that the way you feel

3:25 Seth: about Fish in general?

3:27 Wes: Yes.

3:27 Seth: Yes.

3:27 Wes: I think there's probably no greater sophist in American society right now than Fish. I know I've said that about many people, so take that with a grain of salt.

3:37 Dylan: You're just bringing out your anti postmodernist grind.

3:40 Wes: I mean, it's more than that. I don't even know if I'm anti postmodernist. Let's get topical and avoid. Yeah, we'll get to it.

3:47 Mark: Well, it would be nice to just lay out how these various readings, including. So another one that how many people. I did read John Milton's Areopagitica. Is that how you say it?

3:57 Seth: I couldn't do it. I didn't have time. And when I started reading it, it was so hard to read because of the language. I just said no.

4:04 Mark: Well, and the first couple pages are really hard to get through because they're.

4:07 Wes: Yeah, you have to get beyond that and then get into the swing of things.

4:11 Mark: But just to lay out sort of where they and Mill lie on this debate, that Milton in particular. So his book was. It's an essay from 1644 and is sort of the big precursor to John Stuart Mill's On Liberty. It's like, you know, it's 200 years before he was arguing specifically about should we have a central censor that has to approve every single publication, which is not a live issue for us.

4:37 Dylan: Hopefully not in the US for most of the rest of the world. It's true.

4:42 Wes: By population, not beforehand. So you could be punished post hoc. Yes, but you're not submitting books to censors first. But you could, if you were a Holocaust denialist, for instance, in Germany, I think, or maybe it's just Austria, but, yeah, you could be punished. And in fact, a certain guy, I think he was imprisoned. Huh.

5:03 Dylan: The same way it works in China, right?

5:05 Wes: Is that the way it works?

5:06 Dylan: You get punished post hoc or they just filter out your Internet, right?

5:11 Wes: Yeah. So I think, yeah, in China, they try and nip it in the bud. Lots of Internet regulation and blocking and. Yeah.

5:20 Mark: So a lot of the arguments that we went over in the Mill episode ultimately came from or were updates, you know, secular updates of arguments that Milton had given 200 years or so before about how we should really have all the ideas out there, because that's what our reason needs to sort through things. And it sort of respects our autonomy to have. You know, if people are dumb enough to be corrupted by bad ideas, they're actually going to be dumb enough that they're even going to be corrupted by good books is one of Milton's points. So we saw that in the.

In the mill. And Mill is usually taken as the advocate of unrestricted free speech, but as Feinberg points out, actually, Mill acknowledged right up front that there's whole classes of things that are obviously harmful speech, like defamation and sedition and other things. So Feinberg's article is actually laying out what those exceptions he thinks are, and considering some of the philosophical issues involved

6:24 Wes: in them, those are cases in which speech is intimately connected to action. So in the cases of those prohibitions, it's not so much about the content, it's about what you're doing, what the speech act is. So if you're inciting panic or something. The fire in a crowded theater example, it's not that there's fire in a crowded theater is a horrible opinion to hold, if you thought of that. In this opinion, it's a specific incitement to people to do something that leads to actual material harm. So it still, I think, falls within the rubric of Mill's harm principle.

7:01 Mark: And Mill as a utilitarian, he adopts this more or less unrestricted, outside of these categories, free speech doctrine because he thinks that it's going to bring the most happiness to the most people. It's going to satisfy the utilitarian principle. So it's actually. It's not that free speech is great in itself. It's not because we want to hear ourselves talk. It's because the effects are positive overall, Mill thinks, for allowing unrestricted free speech. And so Fish Runs with that. Oh, actually, I should say first. So the Stanford article actually starts out by saying, look, speech is always for some purpose.

So it's really arguing about what the purpose is. Where you come down on what sort of speech should be restricted speech that does not fulfill or runs directly counter to whatever the purpose is that you were advocating for. Free speech is at least a candidate for restriction. And Fish takes this very literally, that he thinks that the foundation of any sort of forum, whether you're talking about a university or just the political forum, you know, TV ads for political, that there's always built into whatever the forum some sort of rules of engagement, and that these themselves are a political construction that's been put together over time.

They are not neutral with regard to what is being said. And we should just acknowledge that, that there could be. If you say, as Mill seems to, as Milton seems to, that the purpose of free speech is to support participatory democracy, then you can make an argument that hate speech, for instance, actually doesn't support participatory democracy. It's trying to rule a whole class of citizens out of the democratic project. And so that would be an argument for saying that that's okay to limit that. And Fish thinks that that is not a bug in the argument, that's actually a feature.

So this is, I think, the difficult thing for us to lay out in this episode. I see a lot of connections between what Fish has to say and what we saw in Gadamer and other just. You would expect that given that Mill is part of the Enlightenment tradition that probably a lot of philosophers we have discussed without going full blown postmodernists, there's probably some subtlety available that folks like Simone de Beauvoir and Gadamer and people like that have drawn on that could enrich this discussion.

9:26 Seth: I'd like to start out just also by asking that we agree upon some nomenclature. So all the newer articles make a distinction between spoken and written. So, you know, publication or written content or speech, so to speak versus spoken speech or a speech act in that sense. And also I think when I read Mill, you could read Mill and say he's not talking about freedom of speech, he's talking about freedom of opinion and freedom of expression of opinion. And so really, I think there's the holding, the idea itself or the opinion. There's expressing that opinion, and then there's the context in which you express that opinion.

All of which matter with respect to determining whether something is violating either the legal or the social norms in a society. And So I just ask that at the very least, we keep that in mind when we talk about it. Because if we just use speech, generally speaking, I think we'll run into some confusions and possibly confuse the audience a little bit.

10:34 Dylan: I think we're going to run into those kinds of confusions a lot. I don't know if we can agree on the terminology as much as just explain ourselves along the way, because we're going to get all kinds of things that are very much like speech acts, but might not even involve vocalization, just like. Or, for instance, just writing, which might be a little bit of splitting hairs on my part, but there's distinctions to be made on all those. So I take the point. It's a thorny, complicated thing when you start reading through it and thinking about it. Just have to articulate ourselves along the way.

11:09 Seth: Okay. I mean, but my point makes sense. I think there's. That's part of the challenge in unpacking this.

11:16 Wes: Well, you're getting at the core of the exceptions that are carved out by Feinberg. Right. So if I go up to someone and yell racial epithets at them, that's not speech per se. And in fact, it wouldn't have to be racial epithets. It wouldn't even have to have any content if I went up to someone and yelled gibberish at them. It's not the content of the speech that's at issue, it's the act. Now, granted, if there are racial epithets or other sorts of epithets, you know, you could argue that there's a greater level of incitement there, But a lot of it is about getting in someone's face in an aggressive way, in which case, in the law, that's called fighting words.

And you could reasonably expect someone to retaliate, even violently in those situations. You don't have a right to do that. So I think, Seth, what you're talking about is free speech conjures up this idea that anything that involves us speaking is somehow allowable, which, of course, is not the case. It's more about our expression of our opinions and not about other acts. So, for instance, intimidating people, threatening people, making people feel unsafe and things like that. And the thorny part gets to the question of safety. If people are saying, well, someone giving a speech somewhere that they think is racist or writing it, putting it in a book, makes them feel unsafe in the same way that fighting words might, then you start to get into more difficult areas.

12:45 Dylan: Well, I mean, it has to do with either expectations of harm to happen or how we understand what reasonable harm is. I mean, it gets us back to the mill in the first place, that part of what that issue is, how much harm can you hold someone liable for, and how much harm should a person expect that they can avoid? In no case have we read that the speech, like anything else, is completely unfettered. It's really an argument about what ways, what kinds of fettering you're going to have. Mill outlines a harm principle, and he admits, just like we've been saying, that there are plenty of cases where you can point easily to harm being there.

The fire and crowded theater is a perfect example. But then it comes down to, well, I might say something that harms you, but that's okay. That doesn't rise to the right level of harm. So then it becomes an argument about what level of harm can you expect to have to tolerate.

13:46 Wes: Yeah, I think there are a few questions there, like how close. Well, so one of them, I think, with the level of harm you're talking about, Dylan, is it the case that our offense.

13:56 Dylan: Exactly.

13:56 Wes: Our hurt feelings constitute harm, which Mill argues very, very strongly against that idea.

14:03 Dylan: Yep.

14:04 Wes: And then the question is whether you might.

14:06 Mark: Well, see, he argues against that idea. Hold on. You know, it might be offensive if you express atheism like that's the kind of thing he has in mind. That. That's. If I'm offended by you being an atheist, that's not a legitimate ground for restriction. But if we take Feinberg's word for it, that he's already at the beginning of the essay, setting aside issues of defamation, say, then, or invasions of privacy, the fact that I say that you're a homosexual or something like that.

14:33 Wes: Yeah, but that's not about being offended. That's about actual harm done to you. Right. It's not just that I was offended by those things that you call. You say I plagiarize something. It's not that that offends me in the same way being called a racial epithet might offend me. The racial epithet has no content. Exactly. Except that I hate you or that you're an inferior being. And the libelous or the defamatory claim is something specific that I'm factual, that I'm meant to have done, which can affect my reputation, my livelihood, it can deprive me of a job, things like that.

15:09 Dylan: Yeah. I think then the argument is a discussion of when is it sticks and stones and when is it just words.

15:16 Wes: Yeah. But if you call me a racist for one of my articles online, generally, that's going to Be protected. It's not defamatory, even if it's false, and because it's an interpretive matter of your opinion, that would offend me greatly. But it doesn't matter that it offends me. It's not defamatory. It doesn't even matter in that case that it's false. If it's false, yeah.

15:39 Dylan: Where we'll get into, where it gets more difficult is what kind of psychological harm do certain kinds of offense have and whether or not you can be held liable for harming people in that respect?

15:51 Mark: I mean, do we want the whole discussion to really just be about a philosophy of law discussion, which is what a lot of what we read today is about? But part of the lesson we got from Mill, I think, is that. And I think this very much resonates in the way people talk about freedom of speech as a live moral issue. Now, it's not just what should we advocate the state coming in and restricting, but what in any given forum, like an academic situation, which is not directly under the rubric of the state, is that organization going to be justified in some way in prohibiting this kind of speech. And so I think just, yeah, we shouldn't automatically say, mark, I'm offended.

16:33 Dylan: I'm offended that you'd interpret that comment that way.

16:36 Wes: Just because we're talking about legal distinctions now doesn't mean that's going to be the whole conversation. So we have plenty of time to get to those other things.

16:44 Mark: The fact that, Wes, that you're immediately going to. It's not legitimate for the state unless it's fighting words. I just. It's too easy for these discussions to be about the detailed and rich history of case law, about how judges, you know. So Holmes and Brandeis are the names that are most often thrown around bringing up case law.

17:04 Wes: I was bringing up basic distinctions around the harm principle, which, believe me, I don't want to talk about Feinberg for most of the conversation either. But those are basic distinctions which help people understand some of the issues. The issues really will. They get more subtle, but they originate in some of those sorts of distinctions, as Seth was getting at earlier on the expression of opinion and things which sort of constitute an act arguably, or lead directly to action, or.

17:29 Mark: I'll just. I'll come back to this the next time something triggers me in the conversation.

17:36 Dylan: Well, I mean, I think what you just said, that sentence right there, is one of the live issues. Right. That has to do with what kinds of offense or whether or not in fact it's very topical Right. Are there certain things that should not be allowed to be said in public because they're triggering for certain kinds of people.

17:52 Wes: Right.

17:52 Dylan: Because it caused them psychological harm. Right. That's a way in which the harm principles being brought to bear regarding freedom of speech.

18:01 Mark: Sure. I, I'm partly, I'm just presaging what I saw in Fish of the idea that in order to say anything at all, like what you said, Dylan, earlier, that there are always going to be restrictions on what you say. It's just a matter of where the restrictions go. And it's not really clear to me. I can see a free speech libertarian jumping in and say, well, no, it's actually not the case that there are always restrictions on what you say. If you're going to say there are always restrictions on what you say, what you mean is something like what Fish means when he says that, which is for a conversation to be coherent and meaningful. There are so many restrictions already in place given the type of conversation it is, given the setting that makes it counts as a, you might say, a legitimate move in that language game.

18:47 Wes: Give me a concrete example.

18:49 Mark: He uses the example of an office setting. So there are so many things in that, you know, what is an office setting about? Well, it's about getting this work done or whatever the thing. So if you start cussing out your boss or whatever, pretty much any conversation, if you just stop and start cursing at the person, you're probably not. Unless we've agreed in advance that this is a knockdown, drag out argument or something like in the context of like even just spouting something that is not words, that's going to be a wrong move in the language game. So that is the sense in which there are always restrictions.

19:24 Wes: So this is where a wrong move in the language game would be something that is not meaningful.

19:30 Mark: That's meaningful, not just meaningful, but could be just inappropriate. Like that you're like, why did you even say that? I don't understand. What the fuck?

19:39 Wes: No, it's a legitimate move in a language game to say something that offends people is inappropriate. There's a point you maybe I want to offend someone in the language game, it's fine. In the office, it's not.

19:50 Mark: In the language game, it's fine. Okay, so yeah, we're getting mixed up here. And what, how this idea of a language game applies to conversational situations. And this is maybe the difficulty in talking about what is the situation. If you're just commenting online. Right. There might not be really any just on Twitter in general, it's not a particular forum that was set up with a particular purpose in mind, unlike an academic institution where you might say that the speakers that we choose to have at our academic institution. Well, given the goal of our academic institution is to educate people.

And so if we have guests there that run directly counter to that, that are preaching something like a Holocaust denial that no legitimate educator thinks is a live issue, it's only just cranks, then it sort of becomes against the rules of that language game or against the conventions of that institution to suggest or actually have such a speaker there.

20:47 Wes: I don't think we need the phrase language game because I think it's misguided in this area. If it's inappropriate in the office to say something or at the university to say a certain sort of thing that offense people, that's just a matter of the prevailing social pressures within that institution. And yeah, they might be related to the institutional mission, but that's not. I think this. He's trying to be very fancy about this notion that certain types of speech are only meaningful against a certain ideological background, which is nonsense, I think.

And in the case of the university, it's not so simple because there's actually a lot of different purposes to a university institution. And it's not just. So if you want to have a club, right, if you want to start a club where everyone has this, you know, similar point of view, and that's very common, and that's what's accepted, and you kick anyone out of the club who doesn't to have that point of view, and you don't have speakers who disagree with that point of view, that's perfectly fine, obviously. But a university is not simply that sort of club because it serves so many different functions.

And one of the functions it serves is it's a gateway to getting job and status in the United States that you're forced to essentially attend. And the other is that part of the other purpose of a university is free inquiry. For instance, it's perfectly fine if you want to make 90% of your professors left wing or something like that. Whatever the stats are that I saw recently, it's fine if you want to bar conservative professors from being at your institution. And I think it's unfortunate, but I don't think there's anything that can be done about it.

You can't regulate. It would be really pernicious to try and regulate that out of existence. But if you're going to allow student organizations on campus, to some extent, they have the right to Express themselves and invite speakers, I think, to address them. It's not an expression of the official university point of view, but it's the idea that students have some sort of right of free expression and assembly within the university context, and that that actually does serve the mission of the university properly conceived. So this gets to the question of who's to say what their mission is, especially if it's a public institution.

Does that institution itself define it? Does societal consensus define it? It's not just like some private club. It's larger than that.

23:09 Dylan: Well, but the universities themselves, all of them, public and private, define a mission. At least part of that mission, which might be less controversial, is having to do with education. Land grant institutions that are all public have to have a mission specifically to educating members of their local community to send them back so that they can bring the benefits of technology and modern learning to their communities.

23:36 Wes: And the Congress has a lot of say over what that mission is if they want. In the case of public institutions.

23:42 Dylan: Yeah. So I guess I'm just pointing out that it's not as if the university is some kind of blank slate. In fact, the university, in whatever that sort of entity is, is following a little bit of what Fish would say is that what that institution's mission is is part of the result of a conversation and sometimes an argument about it. And then. And part of these free speech things between the students and the faculty and the board of trustees and the community around them and the state that funds them and the federal government that has some context for the taxes that they're exempt from.

All of those voices have different amounts of vested interest in what kinds of things happen at that campus. And part of what happens at that campus has to do with speech. So they have a live argument about what kinds of speech ought to be regulated or how open it is. Typically, it's how uncommon or how controversial of a speaker can we have. Part of the question is going to be whether a given speaker amounts to some kind of incitement. Right. We get back to the harm principle, and I don't mean to go all legal on you, Marc. That's not what I'm doing.

I'm just saying that it's one version of harm. Right, right.

24:57 Mark: And you're demonstrating, I think, that there's a continuum in these different contexts in terms of how centralized the decision making power is, of who sets the agenda and what constitutes the rules of the road, the structure of the marketplace of ideas that is going on there. So that's why I think that it's misleading if we talk about everything in legal terms. But there is an analog to the legal terms on any level that even if it's a corporation, that theoretically it's just the heads of the corporations are the ones who sets the policies. And so when you're on the job, you know, I control.

Control what you can say, well, no, as long as there are other individuals involved and it's not just an absolute dictatorship where the head of the company has thought control over all the employees. As long as there are other individuals involved, then it's a social environment and there's going to be at least analogs of these legal issues sort of all the way up.

25:48 Wes: Yeah. My point about the university is that the way Fish defines it, it's as if it's a simple, stable thing, this mission. He treats it, again, I think, on the analogy of this sort of private club. So in the case, for instance, of the government, Mill mentions this early on, though he doesn't spend a lot of time on it. Right. Is people realized, you know, in the case of religion, all right, you know, this whole thing where someone gets in power and then their sister gets in power and it's Catholics persecuted now and then it's Protestants for the sake of the good of society with religion, this is really where freedom of conscience first started.

Really having some power, you say? Yes, despite the mission, the overall prevailing values of the society, even if they're Protestant, we're going to carve out a space for dissent and for people who have different religions because that is also part of the good of society. And you can ask that question about a university, whether free inquiry, even to the point of allowing certain student groups to invite certain speakers, if that isn't a good thing. And it's not just up to the university, it's up to society as a whole. And in fact, there are legal aspects to it.

I mean, courts have ruled that student groups do have the right to bring on these speakers that offend people. And so we need an argument about why the courts are wrong and why schools should be able to say no. That's not to say, by the way, that we expect the administration to. To invite such speakers. I think it's perfectly fine if administrators don't want to invite such speakers. And similarly, if you have a newspaper, it's perfectly fine if you want to publish only liberal or right wing authors or you, you do what you want with those things.

But the special case of the university is the existence of a captive populace there because they have to be there to get ahead in society. And also because there is this overriding value of free inquiry where to some extent students have to be able to express their opinions with some freedom in order to do what a school is designed to do.

27:59 Dylan: I think you're doing a very good job, Wes, of just articulating exactly Fish's point, which is that where those boundaries are, are in fact part of the whole discussion. And what you just articulated was the reason why that principle, rather than call it freedom of expression, it's called the principle of free expression, ought to be given very wide berth at a university because of there being a captive audience, particularly of the students. And that has real life consequences that they, you know, in some sense they have to go there. That it's in particular the case of public institutions, which ought to be given even wider berth because of the nature of public institutions, and that the nature of the intellectual inquiry at a university is consistent with having a very, very wide berth for unfavorable or contrary opinions and a very, very high bar that you have to reach in order to consider what somebody's saying is so controversial as to be incitement.

29:00 Mark: So when Fish is saying that you can restrict speech based on the charter of your organization, this should not be seen as merely a matter of asking the people who are in control is that okay or not? Or actually looking at the text of the charter and saying, well, you know, this charter says we should not allow hate speech or something, so we shouldn't. No, it ends up being a creative analysis, which is what constitutional law professors end up doing with the Constitution as well, that you say sort of, what is the spirit of why this organization exists?

What are we actually doing here? And that's something that requires deep reflection and can't just be a matter of verbatim reading off of rules or of some people in control sort of dictating. So I think that it is, as Dylan said, it's totally legitimate, whatever the actual mission statement of the university is to read into its charter and come up with an argument that we should allow this speech, we should allow most speech, we should allow whatever for your thing. And in the same way, I think Fish says there's something like the social contract, or maybe even deeper than the social contract in a particular society, something in human nature itself that we could read into and come up with a argument that say, look, I know the First Amendment says allow all speech.

This does not allow direct harm, but this whole class of speech. So, for instance, one of the examples that's often brought up that Fish doesn't talk about is pornography is. If pornography is in fact systematically degrading to women and in fact leads to the result of them being ruled out of the democratic project altogether, it so degrades their status that they're no longer taken seriously as citizens. One could say that is against the spirit of democracy that underlies America, Whatever the actual text of the First Amendment says. I'm just saying this is what Fish thinks is available to us as argumentative tools.

30:49 Wes: So I want to respond to that, and I think that's good, because we're starting to clarify what Fish is actually saying. So one of his claims is that all freedom of expression occurs against this normative background. So some conception of the good. We're back into this tension between the good of the society and then individual rights. And his idea is that the right to speech is actually subordinate to some conception of the good. And not just that, that there is no such thing as meaningful free speech except in the context. Yeah, so he says a meaningful assertion can't occur, really, except against some background conception of the good, which is external to the value of free speech.

Free speech can't be a value in and of itself, which I think is wrong. The idea of certain civil rights, they can be values in and of themselves, and they can be values that override. No societal good can override them. So you can't say, okay, the mission of the university is this. Therefore I get to violate certain civil rights of students. So, yeah, so you get this question of certain rights that can't be overridden by any conception of the good. We can't kill people because it would overall increase societal happiness and things like that, and that's what's at stake here.

So this whole obfuscation about some conception of the good being the only meaningful background, ideological background against which freedom of speech can make sense, I just don't think is true. I think freedom of speech not only has that. Mill articulates a bunch of different reasons why it's valuable, and not just valuable to society, but valuable to the inherent telos of individuals. Something which I think we intimately associate with rights. Even though it sounds utilitarian, it's a utilitarian way of getting at the concept of rights. So that's why I object to Fish.

I think you can say, yes, there are overriding values which are not subject to university charters or missions.

32:51 Dylan: So it's interesting, I feel like we're interpreting Fish in a different way, because I see what you're saying, and there's Something true in the article, that part of what Fish is trying to do is provide space for. For having certain kinds of limits on free speech with respect to hate speech and stuff like that. He doesn't go into detail on that. He has this more sort of abstract argument going on. But again, I take him as saying that these contexts about what is a right and what is allowable speech is intimately related to what we think is the end of good society. And again, I mean, what you just said to me seems to be exactly that. That the rights of individuals regarding how they speak is a value in itself. That would be part of society. I don't see how those two things are separated from one another. In fact, you said even the telos

33:51 Wes: of society, of the individual, not of society.

33:54 Dylan: Okay. I just don't see them as separate. And maybe part of the way I'm looking at this is you would use Fish's argument in this analysis, push very, very hard against him on it, against any kind of. Or having the bar very, very, very high for what kind of speech could be regulated. It seems to me you could have a functionally absolutist position regarding it.

34:18 Seth: I'm trying to see, Wes, how your objection to Fish differs from how he responds to the critics that he's gotten in the postscript. So he says in the postscript, I'm just gonna read a quote. He's talking about criticism by Holmes.

34:38 Mark: It's Justice Oliver Wendell Holmes.

34:40 Seth: Sorry. He's talking about a particular judgment that Holmes articulates in a case. And he says, this sounds fine, even patriotic, but it runs afoul of problems at both ends. The entry problem is the one I've already identified in my reply to Professor Post. The marketplace of ideas, the protected forum of public discourse, will be structured by the same political considerations it was designed to hold at bay. And therefore the workings of the marketplace will not be free in the sense required, that is, be uninflected by governmental action. Things are even worse at the other end, the exit or no exit end.

If our commitment to freedom of speech is so strong that it obliges us, as Holmes declares, to tolerate opinions we believe to be fraught with death, a characterization that recognizes the awful consequentiality of speech and implicitly undercuts any speech action distinction, then we are being asked to court our own destruction for the sake of an abstraction that may doom us rather than save us. So my question, I guess, to you, Wes, is in what way is your criticism of Fish kind of a third way out there?

35:48 Wes: Well, so far I've just criticized his, you know, sort of literature professor's use of philosophical theory to say something fancy like the idea of free speech and even any sort of expression is not meaningful against this ideological background which we can't actually articulate and blah, blah, blah. So just to address Dylan's point earlier, the difference between the whole question of rights and the question of other sorts of good, you know, established by university missions and so on, is we're talking again about Sandel's thin conception of the good versus thick conception of the good.

We're talking about rights versus utilitarianism. We're talking about what happens behind the veil of ignorance that we think cannot be given up versus what we can tolerate within a pluralistic society. So many different forms of life, many different religions, many different sorts of, of opinions, but not any sort of action to undermine liberalism. So the idea with Holmes and others, and Mill addresses this directly, is this idea that some speech is so urgent could be so damaging to society that we have to regulate it. And I think the damage actually, you know, if you think the integrity of a liberal society is an enactment of liberal principles like.

So is it more damaging to a society to suppress free speech, the sort of anti liberal action, or is it more damaging for society to allow a bunch of people to express anti liberal ideas? I think the former is far more damaging than the latter. And in fact the latter allows those anti liberal sentiments to come out into the open to be addressed and processed and neutralized and not just fester in the dark until they explode into some sort of action where you get a regime which is oppressive and it's not the kind of oppression you wanted. It's not oppression of hate speech.

It's oppression of exactly the kind of speech you thought is good for society.

37:52 Dylan: That's exactly right, Wes. I mean, I completely agree with it.

37:56 Mark: Can we look specifically at the Holocaust denial issue? Because I think this really crystallized it and this is something that comes up both in Fish and. Well, for Feinberg, it's not in the selection we read, but in one of the optional articles he deals with something similar, Holocaust denial. And then likewise the march in Skokie. You know, these are common things to be addressed here. So the Holocaust denial thing was an example that Fish characterizes as. This is something actually I remember at the University of Michigan, in the Michigan Daily, I think this exact article, the case for open Debate about Holocaust denial.

I remember that coming out when I was a sophomore or something. And I think that's the exact Same article that he's talking about in the case of the Duke newspaper here. So he's saying this is kind of when the case for Holocaust denial was launched onto the national stage because these kind of known anti Semitic authors published this article.

38:51 Wes: It was an advertisement, actually, or an advertorial, let's say.

38:55 Mark: Right. Are these newspapers that are, you know, they're student run, they can do whatever they want. Not even the university. Well, okay, maybe the university would crack down on them if they do some things, but certainly it was up to them whether or not to publish this. And according to Fish's account, the editors here disagreed with the content of this advertorial, thought that it was in fact a crock, that it was not legitimate scholarship. But because it was used as rhetorical flourish, the case for open debate, they felt like, okay, you know, we should be promoting free exchange of ideas. Only the most horrible kind of thought police would suppress this and decide to not take the advertising money of these people and let them be heard. And Fish thinks that they were duped, that they were just duped into doing this.

39:41 Wes: He's absolutely right. I mean, he's completely right, but it's just not relevant to the rest of his argument. Yeah, it's something we would all agree on. So I wouldn't say, oh, because of free speech, I personally have to express all opinions or my club has to express all opinions or my newspaper. If that newspaper in particular thought Holocaust denial were a worthwhile point of view, then there would be integrity in publishing that. But if they just think that because of free speech, they have to endorse or give a platform to that point of view, that of course is silly. That's misguided. The students didn't really understand the principle of free speech in that case.

40:20 Dylan: Yeah, they don't understand what they should be doing in terms of their mission regarding inquiry. I mean, to me, the perfect parallel would be like a scientific journal in which somebody's trying to publish a paper showing something really contrarian regarding current scientific results. So the mission of most journals in this respect would be to have it peer reviewed. And the challenge there is always, are the peers going to be so close minded as to not be willing to publish something that really undermines the current way of viewing the world and that they ought to have a, you know, be able to engage that.

But that also doesn't mean that just because somebody throws out an opinion that says something that undermines current theory of electricity and magnetism as being completely hoo ha, that they have to publish it. There are principles that they try to adhere to regarding evidence and articulation that guide when they should publish certain things.

41:28 Wes: Yeah. And it can even be a partisan principle.

41:30 Mark: And that's obviously different, though, than a school newspaper which probably has an editorial page and makes some effort, will express through the editorial, like, here's the opinions of the editors of the paper. But we also have as a principle that we're going to allow dissenting opinion. So it's within, arguably within their charter, that they should allow in things that they disagree with.

41:52 Dylan: Yeah, but it doesn't mean they allow anything in there.

41:55 Seth: Right.

41:56 Wes: It really does. It depend on their editorial mission. So, for instance, the New York Times has a largely liberal editorial page, and they've made efforts recently. You know, they have certain moderate conservatives who write for them, and they've hired a few recently.

42:12 Mark: They had William Safire for a long time.

42:14 Wes: Yeah.

42:15 Mark: They always have a token conservative, at least.

42:17 Wes: Yeah. But there's also Ross Douthat, who's excellent, and David Brooks, who's very, very hit or miss, who I used to really hate, but I think that sometimes he's not so bad. And now Bari Weiss, who's been very controversial, and Bret Stephens, who's been very controversial, even though I don't think that they are anything more than moderate conservatives. And I think that's perfectly fine. If the New York Times decides they want to do that. If they decide they just want all liberal, I think that's fine, too. It's up to the institution. In this case a newspaper, in many cases, it's there to advocate a certain point of view.

And even, as de Tocqueville pointed out, it's a way for people with similar points of view to sort of communicate with each other often. And then we call that the bubble. And it has a lot of negative effects, but it serves an actual function as well. Now, like with the blog, I've actually tried to. With our blog in particular, if I think something is thoughtful and done well. I mean, I publish things which I disagree with all the time. And then people will say, oh, I knew you guys didn't like Peterson or something on Twitter. And I have to respond and say, well, actually, we don't have an official point of view.

As a matter of fact, look at the bylines.

43:29 Mark: It's not.

43:30 Wes: And we all. Yeah. And we all differ to whatever degree on different issues, and we aren't necessarily endorsing exactly the position that we're publishing. So that's our particular mission. But it doesn't have to be everyone's mission. The concept of free speech doesn't necessitate that any given publication has the mission of publishing dissenting voices.

43:52 Dylan: Well, maybe it becomes more poignant about the different kinds of governmental regulation in this respect, like the question of either the Skokie March or the recent white supremacy protests and fallout from that. And I guess we could also look back to other protests, you know, the protests in the civil rights era, which involved actually at least as much, if not more violence than those recent protests did.

44:21 Seth: I would like to circle back to the Holocaust denier thing. I know you guys know how much I despise talking about this topic, but the Holocaust denier example is typically and even in these articles, raised to make a distinction between harm and offense. So I don't remember if it's Feinberg or if it was in the SEP article where they say, you know, like, and by the way, the Skokie March is now probably so deep in history that most of our listeners probably haven't heard of it. But if you've ever seen the Blues Brothers movie, it was satirized, I think, in the.

When they chase the guys off the bridge. But anyway, the point of the Holocaust example is typically rhetorically to draw out the distinction between harm and offense. So, yes, these guys wear swastikas and they, you know, march and they deny. Actually, these are two different examples. But if you deny that the Holocaust took place, or if you put out pro Nazi propaganda, yes, it's offensive to Jews and actually to most everybody. But is it actually causing any direct harm? And that takes the conversation in one direction, back towards Mill's articulation of it, which is about being able to see direct harm to, say, an individual, and then you expand the conversation to direct harm to the fabric of society or the liberal principles or whatever.

But in the case of a Holocaust denier, this gets back to what I said initially as the podcast started, which is, there's an underlying statement or belief or opinion, then there's the expression of that. And in the case of Holocaust denial, it's simply saying, I deny that this generally accepted fact is true. Or typically, the way they couch it is they say, oh, well, you know, we're not sure about the number of people that were killed. We have a disagreement, or we want to reassess how many people were killed, and that's intended to open the door so that they can slide in other sorts of things.

But my point is, if we agree that documentation, you know, the epistemological establishment of the fact of A Nazi campaign to exterminate the Jews is true, then my gut tells me that I'm under no obligation, nor should it be socially acceptable. I won't say illegal, but I'll say socially acceptable to dispute that fact. Like, if you're just disputing the fact and saying, you know, something that's generally accepted and well documented, then you're just being a contrarian in such a way that's actually not in good faith. Now, what I read Mill to be saying, and where I'm somewhat challenged on this, is the idea that everything out there is kind of like a scientific truth.

So people in past ages have been wrong. So we should examine even our most aggressively validated and held beliefs, because if they're robust, they'll stand up to the challenge. So I'm caught in this kind of no man's land about my opinion about this in the sense that it strikes me as should we just let all the Holocaust deniers continue to deny because the reality of the Holocaust and the documentation is so strong and robust that we'll just continue to slap them down or they won't be accepted? Or do we say, look, this is just not an acceptable form of dialogue in our society?

And I'm honestly torn between the two.

47:46 Wes: You mean say that legally or socially?

47:48 Dylan: Yeah, there'd be a difference between social approbation regarding it and making it illegal to say.

47:55 Seth: Yeah, I think socially, I mean, there's a sense in which I want to be legally like Mill and socially quite a bit more restrictive. The problem is, is that the social mores change. And what we see is the further removed you are from an event or a fact, and the less present all of the conversation and the evidence becomes, the more possible it is to have people cast doubt.

48:23 Wes: Are you worried there about normalization? Is that what you're.

48:26 Seth: Yeah, I think that's what I'm trying to say. You know, that if we permit people who hold racist, sexist, whatever kind of views to constantly assert those views, there will be a form of normalization in the public discourse that will legitimize them, even if they are contrary to fact and accepted, working through the social society.

48:50 Mark: Yeah, and I want to jump on the constantly assert there because, you know, if somebody is in an insane asylum constantly asserting untruths, I don't care.

48:58 Wes: Well, if they have the most popular blog United States, do you care? But go ahead.

49:02 Mark: Right. The Internet raises difficulties here because all these articles are before the Internet was really a factor. And so, you know, it's fine even In a university, Fish says for somebody to, like, be out on the diag or whatever, you know, street preacher, to be out spouting whatever. I think clearly, as a practical matter, if the thing that they're spouting is virulent anti Semitic stuff, the campus police will probably step in. Whereas if it's just a random preacher saying, you're all going to hell, that's still attacking. But we just recognize that is provocative in a different way.

And so it's really a matter of what the venue can stand. You know, the Internet is. There's so many places on the Internet, just like, you know, we can stand people having private conversations at their homes and expressing whatever kind of racist garbage or whatever that they want. Nobody's really suggesting that we try to regulate that. It wouldn't work anyway. That's a main reason. But even if we could, that gets in too much of the thought police and trying to get in people's heads. And likewise, the Internet as a whole, you might argue. Similarly, people set up these little chat rooms and they're, I don't want to.

Once I bring up Reddit or something like, well, then there's another forum that could be like a newspaper that could, you know, decide, we just don't want to allow any of this shit. So I think the question of venue is the chief one that faces us now that Fish himself seems like he's directly addressing that. In any given venue, you should start interrogating what its underlying purpose is, and that should determine whether it's okay to censor anything. And of course, even for Fish, the default is, no, of course you don't censor. It's just like, if there's a particular case of harm or of serious offense, do you entertain it or not and say, well, maybe we should censor in this way?

So I don't know how to answer this venue issue either. I think it's pretty complicated. It's not a clear matter of private versus public. Public venues can't have any restrictions. Private venues, while the people control it, can make whatever rules they want. I think that dichotomy does not work.

51:03 Wes: I think the word censorship is not. Because I think when the student newspaper refuses to publish a Holocaust denial editorial or advertorial, if they had done that, which they should have, that's not censorship. That's just their decision about.

51:17 Dylan: It's editorial.

51:19 Wes: Yeah, it's editorial. And I'm not saying here, by the way, something you commonly see on the Internet. Oh, censorship is just about government prohibitions. Because Mill makes it clear. In fact, he says, in a way it can be more pernicious, the social pressures, the social sort of censorship. But by not publishing a Holocaust denial advertorial, you're not censoring them socially or legally. It's just you don't agree with it, you don't want to say it, and you're not obliged to say it on behalf of someone else.

51:48 Dylan: So a place that this comes in because a little bit more like government regulation would be a parallel with evolution and the conversation of whether or not creationism ought to be taught in schools. And I could imagine a parallel argument made by Holocaust deniers saying the weight of evidence contrary to the assertion that the Holocaust actually happened, ought to be given equal play in the textbooks of our high schools.

52:14 Wes: Right.

52:15 Dylan: And that would be almost exact kind of parallel to me, because I think that evolution is just as undeniable.

52:22 Mark: Or I think the same thing extends to global warming kind of thing. You know, even things that are not as completely well established.

52:28 Dylan: Yeah.

52:28 Mark: Like there's still plenty of room to argue. Yeah.

52:32 Wes: I mean, even in cases where there might be legitimate controversy, unfortunately, you know, societies have to make those decisions about how they're going to educate people. And they will. And it won't always be the optimum decision, but it has to happen. And it's not a question, again, of free speech for someone to, you know, get their view into a textbook.

52:53 Seth: But here's the thing, right? The only way that a quote unquote decision gets made about how these things are going to be handled is if the government makes a law about it. Right. Or if there's some sort of regulation. And so the societal norms that evolve are emergent. And insofar as individual specific interests can take control of the modes of expression, either via the Internet or media or whatever the case may be, then they can essentially create or at least shape those societal norms. And I think one of the things that we're kind of missing out here on, like, my inclination is to get very detailed about breaking things down.

But, you know, Mill was talking about the idea of the open society creating a place for the expression of truth, and that, you know, it's this sense of ideas need to come forward, be discussed, be validated, be tested, be argued about so that we can get closer and closer to truth. And again, that's a kind of scientific model that doesn't seem to actually hold. It's an ideal that we like to think that our public discourse and our political discourse should adhere to. Right. So Half of the people are talking about whether or not global warming is true or some of the people are worried about that and other people are using it in a political context to establish something with respect to regulation or, you know, protect industries that theoretically might be impacted by regulation, things like that.

So I think just in the same way that we have to distinguish between propositions about things or, you know, facts versus speech acts, like a march or yelling fire in a crowded theater or whatever, we have to understand how it is that the societal norms get established and what relationship they have to truth or the validity of the norms before we can say with any kind of certainty whether it's appropriate or effective or what have you.

54:54 Wes: But we can't vest any authority the job of saying what's true. As certain as it may seem to you and me, this is Mill's fallibility principle. I think, Seth, you're worrying about how the ability of people to express themselves on the Internet is going to affect, you know, it might normalize false things. It might make. I think it sounds like you're worried that untrue opinions could become the predominant opinion of a society. If we allow everyone to say what they want online, they could influence people in this pernicious way. And I think Mill thinks that society can actually withstand that, that it's not actually dangerous to society to allow that.

55:34 Seth: Yeah, I think I used to think that too, and now I'm not so sure.

55:37 Mark: Yeah. Isn't it an empirical. At least the claim is by some of the authors that we read is that it's an empirical matter that you should really actually look at. Okay. Right now we have some countries in Europe that outlaw Holocaust denial. Does that actually just make it circulate more because like, the people are not allowed to publicly voice it. And so it festers in these dark corners and grows and does. Allowing it into the open air on million grounds. You would think it would kind of dissipate it because more people would see it and respond to it, point out the forceful. But I think that's something particularly again with the siloization that the Internet has brought about. That is an open question.

56:15 Wes: Yeah, I mean, right now we have seen the ascent of right wing populist parties all over Europe, including such places as the Netherlands and Germany. Really scary stuff. So if you thought that the suppression was going to help prevent that, I don't know if it worsened it, but it certainly didn't prevent that. I mean, I'm inclined to think it worsens things actually, if you allow things to come to the light of the day. And then you can neutralize them. And the way to neutralize them is actually to really engage in a sober way with it. As painful as.

Instead of saying, oh, you're a racist or this or that, actually walking the walk, leading by example, let's say, and soberly engaging such things or ignoring them. I mean, if you think they're not actually that influential, which in many cases they aren't, you could ignore it. But I think the other factor for Mill is just that we benefit from having to defend our opinions, no matter how certain we think they are. Often they're partial truths. We can discover flaws in them and we can amend them by having to defend them. We make them more sophisticated.

We make them more nuanced. If that's our response, if our response is to yell back, you know, the idea that we can socially repress something, I think that's misguided. I understand the other point of view, the anxiety about not normalizing, about not allowing certain forms of discourse, but, yeah, I think in the long run it's counterproductive. Like Mill.

57:41 Mark: So I was hoping we could get more in depth on the specifics of the Fish article, because that's the weirdest thing that we read. That he's making some sort of, I want to say, a cross between hermeneutics and the social contract as west was characterizing it. That he's using fancy philosophical like language to make an analogy to incoherent speech in certain contexts, to speech that you would want to limit in political contexts. That west thought was a complete. A bad analogy.

58:11 Dylan: Complete sophistry was the word he used.

58:13 Mark: Yes.

58:14 Wes: Yes. So to say something. Yeah. Is meaningless. Right. You put the wrong words after each other. There are certain rules to the game for it even to be coherent. And that's kind of built in. It's not about. There's no way around that. It's not like I have the freedom to utter gibberish. I wouldn't be understood. I think he wants that analogy to say there are these background restrictions anyway on what would be meaningful speech. And those background restrictions are inherently political, inherently normative. And also, he says towards the end, not subject to examination, not subject to reasoning, which I find offensive as well.

58:53 Dylan: Or did he say that? I didn't remember that part.

58:56 Mark: They're not known to us that we don't. They act on us unconsciously.

59:00 Dylan: Oh, that's what he meant by it. It might be true that they aren't being examined, but that's not the same thing as Saying that they're not open to being examined.

59:09 Wes: I think he says that. I'll look for the quote.

59:11 Dylan: Those are two different things.

59:12 Wes: Get back to you on it.

59:13 Mark: But we should be a little bit open to the idea that meaningfulness is not just a matter of. Is it proper grammar and syntax from our last episode that really if you say meaning is use and use involves not just that you use words that are in correct grammatical order and actually refer to something, the locutionary aspects, but that also that it makes sense as a move in the language game. What, what Austin in our last episode referred to as the illocutionary aspects. And then we could also talk about the perlocutionary aspects, which we got on, you know, right at the beginning of our.

Of this discussion, where you could be using something to insult someone apart from the literal meanings of the words or even the ordinary performative use of the thing. You could be using something with the intention of intimidating or whatever. So we'd want to consider not just the locution, but the illocution and the perlocution. All those kind of go up in a loose way to talk about the meaning of the term or what its status is as a move in the particular language game.

1:00:17 Wes: And those are all allowable moves within the language game. Insulting people, intimidating them. We can't be confused about this word allowable make it out to be morally normative. They're allowable just because language can do that.

1:00:29 Dylan: One of the funny things about Fish's article is one of the points he's making is that there is no such thing as freedom of expression because there's always context in order for there to be anything understood at all. There's always all sorts of contexts that go into meaning actually happening, actually having an effect. And therefore you can't have this sort of absolutist position called freedom of expression. And it's the same kind of thing that you would say about freedom in general, that because speech involves interaction, then there's always context to it. And a genuinely absolutist position would be analogous to talking about free charged particles in the world or something like that, and that that doesn't exist free in

1:01:22 Mark: terms of like free will that we've discussed before where truly free.

1:01:25 Dylan: That's exactly right. That's a better one to use. I shouldn't go all physics on you.

1:01:28 Wes: Sorry.

1:01:30 Dylan: Though I have all kinds of notes and my copy about how much his analogy is like the distinction between interacting and non interacting particles. But the point I wanted to get to was when you make that claim, it's almost like a meta claim about speech, right? Because at that point you say, okay, well fine, it's all about context, it's all about political discourse. So now let's have a conversation about what kind of limits we ought to have, which doesn't seem to be all that different than the place where were at the beginning of it. And in that article, which again I liked, I mean, I did find that the argument that he has would simply undermine any implicit claim that he has for wanting to regulate speech and that it just makes it a political discussion.

And in fact, at one point he says, whoever happens to have the mantle of being able to say, well, I'm acting in the name of free speech and be convincing about it is the one who's going to win. Which I think is true. When I got to thinking about it that way, I wondered, well, so what's the point that you're going to get out of it? That would change the way you interact. Regarding adjudicating free speech questions, he says

1:02:46 Mark: the only advantage is that you defuse the other side, who he's accusing of using notions like free speech and the marketplace of ideas in transcendent, absolutist ways. That once you say it's my freedom of speech, then the discussion stops. And he says, no, that you need to see again, consider why freedom of speech is great as a rule utilitarian rule of thumb. History has taught us that repressing speech leads to generally a harmful invasion of people's privacy of harmful invasion, abridgment of people's rights. It brings all sorts of harm. So in general we would not want to do that. But still we have to keep in mind that underlying harm based rationale for free speech in the first place, and not just say free speech as if it's, you know, you're invoking the name of God.

1:03:37 Wes: He says he wants to see hate speech regulated. That's the motive.

1:03:41 Dylan: But that point about taking principles and making them dogmatic, that's a criticism you can make of turning any kind of principle into an absolutist position. Just like freedom of my will is free, or any of these other things that are principles that you would use. So a softer version of his argument, and I think something that's probably consistent with what Wes has been saying, is that we really ought to be justifying our opinions and we ought to be having to defend either the rules or the lack of the regulation, or lack of regulation, the kinds of instances in which we allow wide ranges of free speech and the kinds of constraints we have on them. And maybe we have articulated a principle that we give very, very wide berth to speech because of other goods that come out of it with regards to our society and supporting our liberal democracy.

1:04:34 Wes: I don't think he's right empirically about appeals to free speech, to shutting down conversations. You know, right now, the libertarian free speechers are going at it with a certain segment of the left which is opposed to, quote, unquote, free speech absolutism and wants to see hate, hate speech regulated. So there's a lively debate. Obviously, Fish was debating this as well, and probably the academic consensus is close to the position that hate speech ought to be regulated for people in the social sciences and humanities.

1:05:07 Mark: The libertarians versus the dignitarians.

1:05:09 Wes: That's right, yeah. So the principle of free speech itself is a kind of dogma, right? It's meant to become a fundamental value of society. And even Mill says this. It's something we should inculcate in people because the existence of liberal society depends on it. Which is not to say such a principle is not open to discussion. And of course, it is discussed. So the irony is you can have a First Amendment, but First Amendments can be withdrawn or modified, and you can have this very strong value within a society, but have it attacked by dissenters.

So the principle of free speech is inherently perilous to itself. And so that's the paradox. But unfortunately, I think it's the paradox we must embrace. And the other part of this is the dogma I think is traceable to a Socratic dogma. But it's the best sort of dogma we can get to, which is that I know only that I know nothing. For Mill, the principle of free speech is based largely on the concept of our own fallibility, which I think it really comes down to our own fundamental ignorance, which we have to embrace that to the hilt, even to the point of sort of discomfort that I think most people won't allow themselves, because I think it is the one thing that we can know.

And if we really want to be dogmatist about something and impassioned about something, the idea of our own ignorance and everything that flows from it is it.

1:06:35 Dylan: Wes, would you say that the principle of freedom of speech must be embraced to the hilt, as you expressed by a liberal democracy, otherwise you open the door to that liberal democracy, effectively undermining itself. That regulation of speech, aside from a small cadre of very obvious examples, ultimately leads to a authoritarian reaction that would undermine the existence of the liberal democracy itself, which would make free speech, in fact, the primary principle even before liberal democracy.

1:07:18 Wes: What's interesting On Liberty is that in the beginning he mentions, well, we all know about the argument that the government can use this whole free speech. If we're allowed to regulate free speech, then it's a sanction for government oppression. So I'm not going to even discuss that. And he really doesn't discuss it. It's not a big topic in On Liberty, even though it's the first thing that libertarians bring up today. Right. They'll say, well, you want to regulate speech. Do you think you're always going to be in power? Do you think that the powers that be are always going to be the ones that will prohibit hate speech?

You're just deluded that your sort of speech is the one that's always going to be triumphant. Do you want the Republican Congress and Trump to tell us what speech is allowed? So, no, because power is contingent and it's going to change hands. We are much, much better off in the long run with making the principle of free speech sacred. So that's one argument. But what I like in Mill is that he goes way, way beyond this. To say our integrity as individuals, our integrity as autonomous beings, as people who are capable of being thoughtful and free, depends on freedom of conscience, but not just dogmatic rote conscience, but tested conscience, which means we have to be able to express our views and allow them to rub up up against other people's views.

We cannot be fully human without it, and hence we can't have a good society without it.

1:08:43 Mark: I think you're kind of echoing the flag waving about the principle in the abstract of free speech. And Fish is not saying, ah, screw free speech. No, he's saying that in making that kind of declaration in its favor, that you're assuming it has a determinative content. Maybe you're not actually doing this, but Fish is saying that you are. And when somebody brings that up to defend my right to hate speech, for instance. Well, no, there's actually nothing in the notion of free speech itself as this thing that you want to defend and as building in the Socratic principle that necessarily says anything either way about hate speech, it's actually a much less determined content.

And some of this is, according to Fish, it's because in determining whether something is under its protection or not, we have to make distinctions, like. Like is this an opinion or some sort of other performative act. That's not just the stating of an opinion that Mill's argument is in favor of all opinions should be on the table. You know, I might be wrong about any opinion. It insults my intelligence to shield me from some opinions. We need to all have the autonomy, and that's what democracy requires, is to have us be able to consider all opinions.

But we started off the podcast by saying, if, you know, I just come up and I call you a racial epithet, that's actually you taking an action, one person taking an action toward another, that's not an expression of an opinion or not. So you could be all in favor of free speech, but think that it applies differently, that it does or does not encompass hate speech.

1:10:18 Wes: The determinative principle. There is Mill's harm principle. And if Fish wants a different principle, he ought to express it and he ought to criticize that principle. So there is a determinative content, at least for Mill, to what counts as free speech. And there are independent reasons to value free speech. Again, the value of truth, the value of individual autonomy, and all that stuff. But I think so the tricky question is, if someone publishes racial epithets in their Nazi newspaper, if Nazis are allowed to publicly assemble, does that constitute a harm?

Can we say because it harms the dignity of certain people, that this sort of emotional harm is something that we ought to say falls within the rubric of Mill's harm principle? I think that's the question. And the other stuff is a little more straightforward about speech acts, libel and slander, and fighting words and fire in a crowded theater. Those speech act distinctions are pretty clear about it not being a mere expression of opinion, but something else. But so the tricky case is when it is an expression of opinion, but maybe it's also so harmful to the dignity of people that it ought to be prohibited.

1:11:31 Seth: If I start with the concept of written speech, my inclination is to say it should be allowed. If you want to write something down and post it on the Internet or write a book being hateful or expressing hatred towards other groups, you should be permitted to do that. And because that act itself is avoidable, it's an act that's perpetrated without a specific recipient in mind. So if I'm in the class of people that are a target of your hate speech and you publish a blog, I can just choose not to read it or what have you, as far as my reaction to it is concerned. But if you pull up outside my house with a loudspeaker, even though you're on the road and it's legal and all that, and you say exactly the same things and it's targeting me specifically, then in that case, I'm inclined to question whether it should be permitted.

1:12:25 Dylan: That would be like whether or not there should be something different about painting a swastika on a Jewish person's garage over and above normal vandal laws, right?

1:12:40 Seth: No, not specifically. So you just raised the question about whether or not hate speech or that kind of thing falls in a class of already prohibited actions. Right. We could say that that was harassment. What I'm thinking of is painting it on my garage versus just putting an image of it on a website. Or maybe even painting it on your garage. Yeah.

1:13:01 Dylan: Having it on your car and driving around.

1:13:03 Seth: So this is such a difficult thing. There's a part of me that in the past has and currently wants to take the extreme position with Wes.

1:13:11 Wes: Now, I'm on your side on these specific issues.

1:13:13 Seth: I know you're. But we have to acknowledge, like, if you use a hammer to build your deck, that's fine, but if you use a hammer to beat someone to death, that's not fine. Right. And I'm trying to parse that in my head. If the use of specific kinds of speech functions in the same way.

1:13:36 Wes: Yeah. As a threat, it's more like raising the hammer in a threatening or intimidating way.

1:13:41 Seth: Or if you walk around your house just uttering racial epithets, it's very different than if you go out and you yell them at an individual. So it's the same words, it's the same person. And then there's the way in which they're uttered. Right. So if you're a comedian on stage, you do it in the context of a Persona or you're making a joke, it then becomes a question of intention or belief. And so if it's always the case that the context, the intention, the beliefs, the disposition, the intended recipient or hearer of the thing as well as the person speaking, it is always required in order to judge whether something is essentially hateful or not. Then I don't think there's a way you can legally prohibit it. It has to be that ex post.

1:14:30 Wes: I think we have principles for those distinctions, like the Skokie March. I don't see a reason that we have to allow that. It's an act of intimidation and could even be conceived as threatening. And I don't see why that particular community shouldn't have us, you know, say, even if it's not Nazis, even if it's just, you know, the I love cupcakes brigade, why should they have to allow that sort of parade down their street? People have the right to freely assemble, but why should it be in anyone's face necessarily? I think there are principles even that go outside of the specific content of calling it hate speech or whatever.

You know, it's inherently a threat or a disturbance or a form of intimidation, things like that. So it's not the shape of the hammer and the content of the hammer, let's say, that's inherently the thing that we regulate. We regulate its use. Is it being used to threaten for violence or to hammer nails?

1:15:20 Mark: One of my concerns after our Mill discussion was again related to this issue of venue. That if we say strongly that the government is not allowed to prohibit speech insofar as it violates the harm principle, but yet any given venue is run by some individual according to their own rationale, then you could have the right to express an opinion, but no de facto way that you can actually do it because nobody will publish you. Imagine. Not even just something we find objectionable, but like we're in a strongly slavery based economy and somebody wants to publish an abolitionist tract and we want to say the First Amendment does and should protect them in expressing those things.

Yet there's nowhere that they can get. If they are de facto silenced, that opinion can never. It seems like Mill enjoins us to look for unpopular opinions like that and give them a forum so that we can argue against them. And maybe our pro slavery position comes out all the stronger. Or maybe it gives us an overtime evolution as a society that unless we had that not just legal openness but the positive effort by venues to allow things that they disagree with. Like Mill seems to think that that is a moral.

1:16:41 Wes: Well, you can create your own venues. I mean abolitionist ideas did have a huge influence and were able to publish and you could start your own publishing company and all that stuff.

1:16:50 Mark: So you might say it's fine for a Nazi newspaper to publish their stuff, but. But how do they deliver this? Like we want to say that it's okay for them to do it as long as it's easy for me to avoid. Right. If they just write a book and put it in the library or even in bookstores, I can always just simply not open that. But actually once even when it's in a bookstore or on a newsstand, then it's in my way. It can trigger me in a very real way. And I want to re bring that statement up because I was recently reminded what the source of that was. That notion actually comes out of domestic violence literature.

Or you could say the same thing and give a comparable Case in terms of people who have ptsd, that there are certain things that actually do cause harm. Nazi propaganda around Holocaust survivors would be exactly this kind of provocation that one could reasonably legislate. Not that you're not allowed to publish your thing, but if you're gonna put it on a public newsstand, just like a porno, you have to cover it with brown paper so people can see just enough of it, so they know it's a Nazi thing, but so that they won't actually. So the Holocaust survivors in the neighborhood won't actually be triggered.

Like, that's a situation that could be a real thing. So in the same way, I think this saying, oh, you can go start your own venue. Well, again, you could start your own venue, but if you're not allowed to let people into that venue, if you're not allowed to tell people about your website, if you're not allowed to advertise in public ways, then you're still de facto silenced.

1:18:20 Dylan: That last point, it just doesn't seem to me that it exists.

1:18:22 Wes: Yeah. And in a way, it's almost like it takes care of itself. So, for instance, if you're in Viennese society during the time that Hitler was living there, anti Semitic tracts are very common literature, and it's part of the public discourse, and it's everywhere, and you can't avoid exposure. That fact is actually connected to the fact that no one's going to prohibit it anyway. And in our society, you'd be hard pressed to go into a bookstore. I mean, you wouldn't be able to at all find a Nazi tract in a bookstore or in a. You know, unless it's Mein Kampf or something like that, or on a newsstand. And that's the societal consensus. And so there would be no need to prohibit it because it's very easy to avoid venues. But if it weren't easy to avoid venues, it wouldn't be possible to regulate anyway.

1:19:10 Mark: So are we doing justice to Mill's challenge that even unpopular things we should actually exposed. It just seems that there are legitimate. And I think this is what Feinberg, when he's talking about the offense principle, over and above the harm principle, that there's a legitimate conflict between the right of someone not to have their privacy, their sense of space, Fourth Amendment stuff infringed on, and people's right to free speech. Like these are just gonna come in conflict.

1:19:41 Wes: Part of the problem, as Mill brought up, is anyone can say they're offended as part of the conversation, and anyone can call what you're racist or Nazi. So, for instance, Christina Hoff Sommers, she calls herself a feminist, she's a Democrat, but she's critical of feminism, of university feminism, and pushes back against what she sees as the excesses of that.

1:20:00 Mark: It's Tamler's stepmom, in case you didn't know.

1:20:02 Wes: Oh, really? Huh.

1:20:04 Mark: It is.

1:20:04 Wes: That's amazing. Yeah. She was deplatformed recently at a university. You know, people went in and yelled and screamed to prevent her from speaking, called her a Nazi, and she would get that same reception, I think, at most private. Well, maybe, I don't know, but I think a lot of places she simply won't be able to speak because in their eyes, her form of libertarianism is a form of Nazism. So that's the sort of problem you run into with trying to say, yeah, we're going to prohibit the hate speech. But then the definition of a hate speech unfortunately becomes a legitimate subject of discussion itself because partisans will abuse that to the hilt. And I think they do abuse it all the time with people like Sommers. I mean, ideally we would all agree on what hate speech is, and I think there'd be a much stronger case for regulating it.

1:20:47 Seth: In the case you were just talking about, where somebody comes in, she's invited to speak at a university by some group and some other group of students comes in and disrupts and shouts down in order to prevent it from happening on the basis that she's a perpetrator of hate speech. What is that act as a speech act?

1:21:04 Wes: I don't think it's free speech. I think it's the use of coercion and force to prevent someone from peaceably assembling.

1:21:10 Seth: I agree. I mean, isn't freedom of assembly one of the key principles here as well?

1:21:16 Wes: Yep. People are allowed to meet and express their opinions to each other in a public forum, but it should be anywhere. I don't think it should necessarily be on Nazis on the streets of Skokie.

1:21:25 Seth: I'm thinking out loud here. In that case, if the organization that invited her had a closed door event that you had to buy tickets or RSVP to and they had metal detectors at the door and they reserved the right to eject anybody for any reason from the conversation, and they did so, would we say their defenders, their right to free expression?

1:21:44 Wes: Yeah, I think so. But although universities won't generally do that, they will just shut the event down for safety reasons. Right, but in this case, I think so you could argue, you know, analogous case like this is analogous to the Skokie case and lots of students, other students are going to be offended and then it's going to hurt their feelings. But I think it's hard to say that this is an act of intimidation when it's so easily avoidable. You know, if the student Republicans club, who are significant minority on any given campus, invite someone to speak to them them in a classroom and you think that that in and of itself is an act of intimidation, I have trouble believing that.

You know, again, it's just too easily avoidable. But again, like I said, I don't think the university organization itself has any obligation to invite such speakers, or even any student group has the obligation to invite such speakers. It's just that a given student group has the right. It's a nuanced case, especially at a private university.

1:22:33 Mark: Maybe we should look at what Fish has to say about the whole fighting words thing. This is 105 to 106. Fighting words have been defined as likely to provoke the average person to retaliation and thereby cause a breach of the peace. Then on page 106. The trouble with this definition is that it distinguishes not between fighting words and words that remain safely and merely expressive, but between words that are provocative to one group, the group that falls under the rubric average person, in words that might be provocative to other groups, groups of persons now not considered average.

And if you ask what words are likely to be provocative to these non average groups, what are likely to be their fighting words? The answer is anything and everything. As Justice Holmes said, every idea is an incitement to somebody. And since ideas come packaged in sentences in words, every sentence is potentially in some situations that might occur tomorrow, a fighting word and therefore a candidate for regulation. So he said. The insight cuts both ways. One could conclude from it that the fighting words exception is a bad idea because there's no way to prevent clever and unscrupulous advocates from shoveling so many forms of speech into the accepted category that the zone of constitutionally protected speech shrinks to nothing and is finally without inheritance.

Inhabitants or alternatively one conclude that there was never anything in the zone in the first place and that the difficulty of limiting the fighting words exception is merely a particular instance of the general difficulty of separating speech from action.

1:23:44 Dylan: I mean, it seems to me that he's making the notion of fighting words and extrapolating it over a long amount of time. And I understood fighting words as a fundamental part of it is it's incitement that is very close in time and that just because you say something that is Is fighting word category in general doesn't make it fighting words in the sense of an action. You have to be in a situation that's. Is it Feinberg that says this? There has to be a real tinder and that you have to be the spark that sets it ablaze in order for it to be fighting with. So you're in a bar and everybody's drunk and you walk in there and you start calling the black guy there, you know, the N word and stuff. And you might perfectly reasonably say you incited him. And the fact that he punched you in the face is a perfectly reasonable reaction on his part.

1:24:34 Wes: Yeah. You have to get in someone's face.

1:24:37 Dylan: Yes.

1:24:37 Wes: It has to be a particular interaction between you and an individual. It can't just be. He's treating fighting words as if you publishing something in a newspaper could be an incitement to someone to come fight you. That's ridiculous. There's essential elements to the fighting words thing which are not just the content of your speech, it's also about the situation.

1:24:55 Seth: Yeah.

1:24:56 Dylan: I mean, so to take it a little bit further, if you write something in a newspaper that makes somebody so angry that they hunt you down, break into your house and beat you to death, it's not that you incited them.

1:25:07 Wes: Right.

1:25:07 Dylan: It's that they committed a crime against you.

1:25:10 Wes: Right.

1:25:10 Dylan: A reasonable person would say that you should control yourself better than that.

1:25:13 Wes: And in some cases, fighting words could be devoid of any specific content. You get in someone's face and you start just screaming at them and posturing in a hostile way. It's what's inherent in that act. The threat inherent in the interaction. Using racial epithets can enhance that and can make the offense more clear and the intent more clear.

1:25:32 Dylan: But, you know, I want to give an example here because you made me think of something. It isn't charged, you know, racially or anything like that. When I was in grad school, my wife and I, we lived far away from where I worked at Fermilab. We had our check deposited at our bank that was, you know, an hour and a half away. And, you know, as are in grad school, money's tight and stuff like that. And so I needed to get money deposited into our bank account that was close to Fermilab. And so I had gotten a cashier's check at our other bank and I brought it over to this other bank and deposited it.

And they then told me that there was going to be a five day hold on that. And I said, why is there going to be A five day hold on it. It's a cashier's check. Well, you could cancel the cashier's check, which I thought was totally ludicrous. And in fact I would have gotten this large amount of money in cash if I had known that this would happen. But I didn't want to, for whatever reason, didn't want to carry this large amount of money in cash. So I was very, very upset about this. At that time I had just shaved my head.

1:26:29 Wes: Sorry, this is great.

1:26:31 Dylan: And I had these. I had sunglasses on and I was apparently looming. I was like in the teller box and I was like leaning over and I was looking at her and explaining to her that this was just crazy ludicrous. And it was very. I wasn't yelling or anything like that, but apparently I was so intimidating that she started backing away. And then eventually they went and got the bank manager and he came over and shook my hand and handled me. I was immediately handled and I wasn't formally escorted. I knew what was happening, so I ceased and desisted knowing that I had lost. But that was to me an example of this. You don't have to use racial apathy or anything like that. You can just be intimidating even if you didn't intend to mean and even if you're perfectly right, as I was.

1:27:16 Wes: Well, except about the shaved head. You weren't right about that.

1:27:19 Dylan: There you go. Well, they're prejudiced against people with shaved heads.

1:27:23 Mark: That was the thing.

1:27:23 Wes: That's a great example.

1:27:25 Mark: Trying to find more good quotes in Fish here about this idea of meaningfulness of assertion. So one of the plays he just says it is on 111 page after what I was reading before, when someone warns about the slippery slope and predicts mournfully that if you restrict one form of speech, you never know what will be restricted next. One could reply, some form of speech is always being restricted, else there could be no meaningful assertion. We have always and already slid down the slippery slope. Someone is always going to be restricted next. It is your job to make sure that someone is not you.

1:27:53 Wes: Yes, the war of all against all back to Catholics are banned one day and Protestants are banned the next.

1:27:59 Dylan: The way I take the absolutist argument, which I guess I'm inclined to as well, is that there's a higher value in preserving the society we want to have is preserved by preserving a very, very wide latitude on free speech. I said something like this earlier, that liberal democracy itself, to the extent that we consider that as being prize worthy as a fundamental aspect of our pluralistic lives, that free speech, in fact, is probably the most important principle underlying it in order to preserve it. And if we abridge it, then we lead down a very particular slippery slope, which is a slippery slope to the annihilation of liberal democracy in authoritarian.

1:28:42 Mark: So you're just straight up denying Fish's premise there some form of speech is always being restricted, else there could be no meaningful assertion.

1:28:48 Wes: Make it concrete for us. What does it mean, apart from his fancy rhetoric?

1:28:55 Dylan: I think the way he means it is in the notion that there's always context and context always boxes things. And I think that that's true, but I think in the end, it's kind of weak, because what we're not talking about is that sort of weak notion of, well, maybe sometimes context is strong, but I mean, this sort of unsaid, contextual thing. We're talking about what people are making

1:29:16 Wes: laws about, but also not just that. We're talking about something that overarches a multitude of different contexts. So, yes, within specific contexts, there'll be social coercion or institutional coercion to prevent you from saying things, but that doesn't change the fact that there's an overarching point of view.

1:29:31 Mark: So the context for how he brings this up in the first place is he's talking about the Milton essay, the Areopagitica, and he's actually a Milton scholar, and he points out what seems to us just like an embarrassing oversight, that Milton has been going on about how a centralized government should not be censoring speech in advance, how ridiculous that is. And then he catches himself up short and says, of course, I didn't mean Catholics. Then we exterminate. And he gives the quote from Milton. And of course, we would just say that the time and place in which he was speaking. And that's just an embarrassing.

1:30:02 Wes: He was wrong.

1:30:02 Mark: Inconsistency. Yeah, Milton was wrong. But Fish wants to say that actually, no, that that's kind of built into. Whenever you're advocating for free speech in the way that Milton was, you always have some sort of ground. Yeah. Would this form of speech or advocacy, if permitted to flourish, tend to undermine the very purposes for which our society is constituted? So he's arguing in very much like the way Mill is, that we should have all ideas on the table so we can objectively consider them. But he considers Catholicism in particular as the intellectual form of giving over your reason to authority, that it's. The Pope is infallible.

1:30:36 Wes: Popery, yeah.

1:30:38 Mark: Once you say the Pope is infallible, then You've given up the whole game of saying every person gets to hear all the opinions and decide for themselves. So that's exactly like we've been talking about. If somebody makes an attack on democracy or free speech itself, and this is exactly, you know, the kind of thing Sam Harris complains about right now, or anybody who is concerned about extreme Islamic rhetoric that we want to say, oh, the liberals want to let anybody just have their free speech. But if that includes extended assaults on the principle of free speech itself in the name of Sharia law or something like it's okay to be intolerant of

1:31:13 Wes: that, I don't think that's true. And I think part of it is again the question of fallibility. And obviously we disagree. People disagree about what's anti liberal. There's lots of people saying the right is anti liberal for this liberal in the broad sense, and then the left is anti liberal for the campus stuff. So because we disagree about that, it's counterproductive to say we know exactly what's consistent with liberalism and what's not, except for those fundamental principles of justice associated with liberalism. So people do have the right to opt out and to be closed minded. And most of us are anyway, in some way we can do our best, and maybe in our best moments we are engaged in free and open discourse, but for the most part we have huge pockets of closed mindedness ourselves. So anyone can be accused of that and it can be used to shut down anyone, Anyone as engaging in popery.

1:32:01 Mark: Did anybody else find these things in Fish convincing? When I read through this, I just thought this followed pretty consistently with things that we have since read, specifically with the hermeneutics episode with Gadamer. Right. In order to understand a text, you have to have a great deal of embeddedness in a cultural context that makes you give hypothesis on how to read it. And unless you are biased in this way, it's the good kind of bias, then you can't even make sense of a text. And so by comparison, Fish is saying that we need to have some sort of paradigm in mind when we're engaging in a political speech act, that for it to be meaningful at all, that much of the analogy works. But then Wes, you're saying that there's nothing that comes out of that.

1:32:46 Wes: Give me a political statement and give me the background against which it doesn't make sense, the paradigm against which it's meaningless. Not just wrong, but meaningless.

1:32:54 Mark: It's an analogy. I've already just given the one. The alleged I'm going To use my free speech within this American system to promote that we should have universal Sharia law, that we should get rid of the very system that I'm taking advantage of to make my statement. That's the kind of example, but that's

1:33:12 Wes: not a meaningless statement.

1:33:14 Dylan: Now, I'm understanding what Wes objects to more clearly in that the analysis that the bar that Fish has is that context strongly determines meaning, broadly speaking. And I think Wes is rightly objecting to this part, which is that the people who make that argument for Sharia law, it's not as if they're not understandable, it's that you disagree with them and that disagreeing isn't the same thing as not understanding. And that that's the part of the argument that that is misguided and that the challenge there is leveraging context as being essentially saying, well, we have a kind of general social approbation against X, so therefore we ought to just make it illegal to do that so that we can all like living together better. And that is explicitly contra the values of liberal democracy, of having a pretty wide berth from pluralism within it.

1:34:13 Wes: Yeah, Fish thinks so. He wrongly thinks that somehow the speech that emanates within the background of a principle of free speech must somehow be consistent with it, that that restriction is inherent. But it's not, because the principle of free speech doesn't say everyone has to believe in free speech. It's regulating behavior. We can't prohibit it. You can abdicate Sharia law, but you can't impose that. So those are two different things which I think he's conflicting conflating.

1:34:40 Mark: Let's read another quote here. It's at the bottom of that page, 103, to the top of 104. All affirmations of freedom of expression are, like Milton's, dependent for their force on an exception that literally carves out the space in which expression can emerge, restriction in the form of an underlying articulation of the world that necessarily, if silently, negates alternatively possible articulations is constitutive of expression, for example. Well, let me read the rest of the quote and then I'll give you the exception that I think is given right in the beginning of the Stanford article.

Without restriction, without an in-built sense of what it would be meaningless to say or wrong to say, there could be no assertion and no reason for asserting it. The exception to unregulated expression is not a negative restriction but a positive hollowing value. We are for this, which means we are against that in relation to which meaningful assertion cannot occur is reference to that value constituted as all values are by an act of exclusion, that some forms of speech will be heard as quite literally intolerable. Speech is never a value in and of itself, but is always produced within the precincts of some assumed conception of the good to which it must yield in the event of conflict.

Freedom has never been general and has always been understood against the background of an original exclusion that gives it meaning. So there's the whole thing. The example that jumped to my mind was shouting over each other, right? You always need restrictions in a conversation so that people can actually make a point and be heard by the other side and responded. So right there, if you don't have any restrictions of any sort. And again, I don't want to just think legal restrictions, because who's going to say it's against the law to interrupt people like, that's not what we're talking about.

But just in the forum of speech itself, there is a social convention that you wait for somebody to more or less be done with what they're saying, and you try to listen to that, and then you respond that unless you have that, then you just have a cacophony of voices. So I think this is what Fish has in mind when he says, in any form of conversation, there's always restriction, because there's always that initial restriction of just talking over each other and yelling and making the whole thing incoherent.

1:36:41 Wes: So, like CNN's Crossfire or like Twitter. I mean, Crossfire is an old show, so sorry for the old reference. He's giving the conditions of an optimal conversation, of a good conversation. But a lot of conversations are suboptimal. And those criteria aren't criteria of meaningfulness exactly. They're just criteria of. Of how constructive the conversation is going to be.

1:37:02 Mark: So you guys buy that as a response.

1:37:05 Dylan: So, like I said earlier, I really enjoyed the Fish article, and I wasn't quite as aghast or found it quite as sophistical as Wes did. But I also don't see how it's exactly persuasive of, by itself, limitations on hate speech, for instance, because it just makes that conversation what it always was before, which was a political one.

1:37:26 Mark: Right. In some ways, he's kind of going against a straw man. When west declares somebody as a sophist. I think it's because they're arguing against not serious philosophical positions that respectable people hold, but against common notions. In other words, they're fighting a political fight. They're not actually fighting a philosophical fight at all. And so I think that if you're a good million or a constitutional scholar or whatever, then you probably don't hold the notion of freedom of speech as a transcendent value that stops all conversation, but that you hold it, as Mill did, as a very strong principle that the experience of history has shown us we should really pay attention to and hold in most cases.

But still that should not again, as you say, Dylan Fish's ultimate conclusion here is that you just have to actually consider the facts in any particular case and then it ends up being a political battle between sides who have different takes on what the facts are in the particular case and how the general rules should apply. And that as long as we're keeping the debate live, that is actually in the spirit of freedom of speech, is to keep the debate live. Whereas if the notion of freedom of speech itself becomes so reified that it stops all debate.

And I think that is an accurate way to characterize how. I don't want to pick on Harris or Peterson in particular or something, but when I hear people echoing their positions, they really are treating freedom of speech like that. And like, ah, it's just a no brainer that all these campus speech codes should go. No, I think there should be a discussion about, for instance, I think this is Peterson's beef is whether the, the trans community should be able to expect people to follow their desired linguistic conventions in referring to them because it's part of their autonomy, their personhood, that they not be put into these gender categories and society, you know, has been for far too long smashing them into this.

So if some particular campus wants to say, when professors talk about this, we would like them to actually use the preferred vocabulary or the trans people in order to show proper respect for those people. And if they don't do that, there's going to be some repercussions, especially if that's only, you know, a about the behavior of professors in their classrooms. It seems from what we said here that that should be absolutely within the charter of that university. To do that, the professor could go publish something about how this is bullshit and trans is not even a real thing.

They could have whatever opinions they want, but the university can control legitimately sort of what is said in the particular class. At least it's a legitimate subject for discussion. Whereas if you just bring up no freedom of speech and then that stops everything like, yeah, that clearly is a dumb. And I think that is what Fish is objecting to is the dumb move.

1:40:16 Wes: By the way, I Just want to say, because we might get emails about this. I think Peterson's position might be. Nor. I don't know. I'd read he actually does use the preferred pronouns, and he had some more nuanced argument there that might be mischaracterized. I might be wrong about that. Just in case people are concerned that we're mischaracterizing him. It's a good example, but it doesn't necessarily belong to Peterson.

1:40:37 Mark: It was not in our syllabus to listen to Peterson about this, so people should not take us too seriously.

1:40:42 Wes: Yeah, but it is a perfect example because it's one of those difficult cases because demands have to be reasonable. Right. You can't just make any demand on someone. It actually has to appeal to their conscience. I can't go into a classroom and say, because of my identity, you have to recite the Lord's Prayer each time you address me. Not mister, but Lord's Prayer, Wes, are all. And things like that. So that's a very sticky situation.

1:41:07 Mark: I just like the comparison in terms of philosophical sophistication over time, which is one of the themes I alluded to in my opening statement. We've had a lot of episodes here on ethics and generally come down with the idea that ethical systems that prescribe absolute, unbridgeable norms are just full of crap. To say, the Ten Commandments, that's what you need to do. Or even the principle of utility or Kant's categorical imperative. When we reflect on these things deeply about our intuitions and how well they satisfy particular cases, we often find that these don't work, that we need some more flexible system.

And so something like what Hume is pointing toward or what Nietzsche is pointing toward, where when we make these judgment calls on difficult cases, we're actually engaging in the creation of values, we're inventing something. We're not merely reading off the law of morality written in nature.

1:41:53 Wes: I think, though, there are bedrock principles, and this is what Spinoza called the ultimate dogma, which is love thy neighbor. Like, that's the one thing, the basic, the larger schematics are the one thing that he thinks is important. I mean, society has to enforce something. Right. It's enforcing the harm principle, and I think the harm principle. While, yes, there are lots of nuanced cases as a principle, it's something I accept absolutely. It's wrong to murder people, and we ought to recognize each other as ends in ourselves, if that makes sense.

I think those things are really, really important. And when they go astray, things like the Holocaust and mass violence. That's the thing we want to avoid. If you want to think about of some sort of guide star by which to navigate as a society, preventing mass violence and genocide and those sorts of atrocities is paramount. And it's an undeniable. I think if you're going to have any morality at all, if you're going to have any values at all, you should be able to agree on those sorts of things.

1:42:54 Mark: That sort of moral objectivism about extreme cases does not decide a moral philosophy. Right. And so something more like, like Hume's view or Nietzsche's view, as I was saying, I think is again, I can't re argue this right now, but this is based on many other podcasts that we've had, I feel like is this sophisticated moral view. And likewise in the area of legislation, of course, legislation is much more tricky because it's a law. It has to be. You know, it's not something that you can just decide for your. You can create a new value when something comes up.

But there are certain things, parallel phenomena between. I hold certain moral principles and I will act according to them in most of my life. But when I come across a novel situation, then I might even have to reflect in such a way that my eventual conclusion might actually violate what I thought was a core moral principle. I think the law ends up being very much the same way. I think it's a great rule of thumb to have no positive law restricting speech except when it violates the harm principle. But that when we get into these tricky cases, or we get into these new cases, or we have new issues of venue, then, you know, these things always have to be reevaluated.

And I accept Fish's claim that there's always something political in the way that we've set up the frames of the debate in the first place.

1:44:12 Wes: One of the things I think Fish is confused about is whether a liberal society is one in which liberal values are trumpeted. And we ensure that people have those values, or at least if they don't have them, don't express them. And then a society that is structured according to those values in which those principles reign. And this is sort of a killing the goose that lays the golden egg kind of situation, where the anxiety that comes with, say, something like freedom of speech, you know, in a way you think about controlling it and somehow ensuring that the intended society associated with it comes about by undermining that very principle by killing the goose in order to, to say, I'm gonna have this golden egg forever.

And you see a kind of psychological parallel in people all the time. They're afraid of their own spontaneity, and they try to control themselves in these very despotic ways. And they're doing it for the sake of some conception of the good. The problem is we can't control it and have it in that way. We can't have it as a content. We have to have it as a function, as a form. And so, one final thing, I think. I think Mill actually raises a really interesting and strong objection to free speech that he addresses in his essay, which is that we regulate action all the time.

And we're not fallible in that either. We have to make these decisions. Fish actually makes this argument as well in his essay. He doesn't address Mill's response. So we have to make these ad hoc decisions. Yes, we're fallible, but we got to make decisions for the good of society, these prudential decisions. So why not do that with speech as well? And Mill's point. Point is that our speech is actually fundamental to changing the way a society behaves. It's a deliberative process. And so if we prohibit speech, we prohibit that ability to change and to grow as a society.

So that's one part of it. And the other part of it is that it's so fundamental. Freedom of conscience requires freedom of speech, and freedom of conscience is so fundamental, fundamental to what it is to be a human being, and so important to our autonomy, again, that it's pernicious to suppress that in anyone.

1:46:24 Mark: Just to append to that. I think we have to find another reading, not this Fish essay, to really give us a good way to evaluate Fish's claim that you can't really separate the form versus the content of a liberal society in the way you've just tried to. Wes, that's his claim. And there was nothing in the quotes that I read that would actually explain that in a convincing way. So whether it's Popper or something else, I think we just need to do this in another episode.

1:46:48 Seth: Okay, so I want to apologize for not having gotten fully into the thread. I'm still trying to find ways to digest this kind of information and deal with sleep deprivation and all that. I think it was a very good conversation as somebody listening to it more than participating in it. But I'm not satisfied that I have my mind wrapped around it. I definitely think there's something that we. That everybody who approaches the topic needs to think through. I agree with Fish that the notion of talking about freedom of expression or free speech is always one that takes place in the context of balancing it against other values.

And so the question becomes, what role does freedom of expression or free speech play in our society and how important is it? I think Wes very eloquently just closed by talking about making an argument for it's a critical value for the type of liberal democracy that we want to have. And I agree with him on that. And at the same time, I struggle with understanding at what points and in what context and in what circumstances is it to be subordinated to other values. And I think my struggle with that is not that that doesn't happen. There are clearly, I think everybody agrees there are instances where free speech needs to be subordinated to some other type of value.

But the question is, who's in a position to adjudicate it? I certainly don't think that the courts are the right people to adjudicate it. But I also struggle with the idea that somehow there's some emergent societal mechanism that does it as well. And that's where the whole thing kind of gets gray for me. And so in the absence of having a mechanism or a properly functioning, dialectically driven society where it's verification, like sort of facts are subject to cold, hard scrutiny and people are able to have civil discourse, then I feel like the default position.

I agree with Wes that by default, in the absence of having a good societal mechanism to adjudicate the issue between free speech versus other values, then you just have to prioritize, by default, free speech and go with it and then deal with the consequences. Which is not to say that you can't post facto do that. The other thing that came out of this for me that I think is. Is hard is the notion of whether it's a right, the concept of right, or is it a somehow a functioning value of the society and not necessarily like a right. We in the United States, we have a tendency to talk in terms of rights.

And, you know, we talk about the right to bear arms and the right to free speech and the right to freedom of assembly. But are those actual individual rights, or is it more just a principle that applies in the context which within the society? And I think you're seeing that same discussion just like we talk about free speech playing out in the debate about guns that's happening right now. Right. The notion of is any restriction of the right to bear arms legitimate? And it's a very similar kind of conversation, at least in structure. Would that we had.

I guess the ACLU is the equivalent of the NRA in the free speech area.

1:50:06 Mark: Fish convinced me enough that free speech libertarians, the arguments against them parallel very well the arguments against any other kind of libertarian. And, you know, we've just had episodes recently where we had a libertarian on and talked about libertarian ideas and thought that, okay, yeah, of course centralized anything is going to have a knowledge problem. And so there's sort of a de facto, at least for us as Americans, thing in favor of liberty. However, when the idea of government action becomes a scare tactic, when. When you think that there's gonna be a slippery slope if we outlaw the government to say anything about guns, then they're gonna come and take all the guns like that.

We think that's irrational when NRA people say that. And we should also probably think that's irrational when extreme free speech people say that and when economic libertarians say that, that the government should be very careful and probably shouldn't intervene in most cases. I wish there'd been an opportunity. Just one of the things I stumbled across was the way of characterizing this as the distinction between mere negative freedom.

1:51:09 Seth: Right.

1:51:09 Mark: The government coming in and stopping you from speaking. Stopping. And the positive freedom to participate in robust public deliberation. This was characterized as the way, like Stephen Breyer talks about freedom of speech. This is not just how Europeans look at things like this is an active thing within the American judicial tradition here is that there might be restrictions. Both of those can be interpreted as potential ways of talking about free freedom and might end up that you do need restrictions on certain speech that clutters the playing field or keeps us from actually participating in robust deliberation in order to facilitate that public liberation. But again, I think we need to find a different reading that really brings this to focus. Wes, did I say enough there that you want to respond again or should I just.

1:51:59 Seth: No.

1:51:59 Mark: Okay.

1:52:00 Wes: I was just thinking of saying something snarky like who establishes those restrictions? Trump or someone else else say that. No, it's not entirely fair.

1:52:09 Mark: But that's okay. It's the end, folks. Should. Yeah, use your free speech to get involved and post something on our blog response to this or on our Facebook group. And if we don't like what you say, then we'll. We'll remove it because that's how those private forums work. But we do it. It's just a fact. If you call us assholes.

1:52:34 Wes: I've had people rant and rave on posts before and not take them down. There is a point that would cross the line, but I've been called all sorts of names and it's tolerable up to a point.

1:52:45 Mark: Sure.

1:52:46 Wes: I mean, I just, I cry in the fetal position, but you know, I don't take it down.

1:52:53 Mark: That should be your response is I want you to take a selfie of yourself crying in the fetal position.

1:52:57 Wes: I should just put that as a comment under every nasty comment.

1:53:02 Mark: Make that your Facebook wallpaper.

1:53:05 Wes: That's right.

1:53:07 Mark: And follow us on Twitter and all that stuff. We want to hear what you have to say. What else do you want us to talk about in light of this? We're not going to always talk about politics. In fact, next time we're going back to ancient Greece and their politics, we're going to do another performance of a play just like Seth wanted us to do in our year end wrap up. So we're gonna be reading Aristophanes, ancient Greek comedy Lysistrata with real actors and celebrity guests, but also us still on there. So check it out. So despite the length of this episode, you might have noticed that we left a few threads dangling.

And a few days later I had another conversation just with Wes for a full hour and a half where we delved into topics like the relationship between power excluding but not limited to government, to encouraging certain kinds of speech and not encouraging others. You also actually watched some Jordan Peterson videos on this topic so we could treat his view with some knowledge. So we've made this available already to podcast supporters through our citizen site@partiallyexaminedlife.com and also through Patreon at the $1 level. So it's a very lively discussion.

I hope you check it out and thanks again for your support. Our closing song is We Don't Talk about it by Steve Wynn and the Miracle 3 from their 2010 Northern Aggression album. You can hear me talk to Steve on Nakedly Examined Music Episode 43@ nakedly examined music.com Good night, everybody.

1:54:34 Wes: Good night.

1:54:34 Seth: Good night.

1:54:35 Dylan: Good night.

1:54:53 Mark: Bitching stories running wild lately Rustling up the leaves Shining lights deep in the cracks that are widen every day and everybody knows where the master hides the evidence of papers that explains all the mysteries away but if everybody knows except a few chosen ones I suppose there's no need to sing it up no

1:55:19 Wes: so we don't talk about it.

1:55:24 Mark: We don't talk about it

1:55:29 Dylan: now if

1:55:29 Mark: everyone knew the ropes and could tie

1:55:32 Wes: themselves knots Every hour on the hour

1:55:35 Mark: One thing would be for sure the jails would go bust and the churches

1:55:41 Wes: would be full and that these would

1:55:43 Mark: go on just the way they were. So if I turn the other cheek. Except every now and then take a peek. I can keep my eyes on you, my friend.

1:55:55 Seth: We don't talk about it.

1:56:00 Mark: We don't talk about it. You wonder what it sounds like when everything works out and life is aligned

1:56:29 Wes: with the heavens and the saints and

1:56:32 Mark: the monkeys and the lions and the

1:56:34 Wes: grocers and the barons are all working in cahoots.

1:56:38 Mark: Might sound something like this. I've been swatting at the flies around my skull until I realized they were trying to talk to me.

1:56:58 Seth: They say you stir up the shit

1:57:00 Mark: and you take away the dirt and

1:57:03 Wes: you're left with a whole new kind of disease.

1:57:07 Mark: So if I turn the other cheek tip every now and then to take a peek I can keep my eyes on you, my friend. But if everybody knows except a few chosen ones I suppose there's no need to dig it up. Oh no. Some we don't talk about about it we don't talk about it. We don't talk about it. We don't talk about it.

1:57:42 Seth: Oh no.