The Law Should Not Restrict Speech


Our society is confronting a difficult moment in which the values of liberty that we have always defended conflict with the values of inclusivity, equality and mutual respect. The best example of this conflict is the debate surrounding freedom of speech: should we allow speech in society that directly attacks the core values upon which our democracy is built? Middlebury College had to ask itself this hard question by dealing with the issue of which speakers should be brought in to speak at the college, and, unfortunately, the college has not been able to reconcile these two opposing opinions. Until we see eye to eye on this issue, the different points of view will feel neglected and the rhetoric surrounding the matter will only further divide our community.

I do not claim to provide any clear solution to the matter, yet I would like to address one small aspect of the issue in order to, hopefully, move the debate forward. We must draw a very clear distinction between the measures that we would like to encourage and those which we will encode into government legislation. By this I mean that, for example, even though we should value “respect,” it would be absurd to encode this value into the legal system and demand criminal punishment for those who do not follow it. Likewise, we must keep this in mind when discussing what ought to be done to resolve the debate between freedom of speech and values of equality and “inclusivity” (the rallying chant for one of the protests here this semester). I will deal solely with the legal issue on a national level; however, I do acknowledge that the non-legal, community building aspect of the issue is far more complex and requires sensibility to deal with. For this reason, even though the college should follow the federal legislation and not impose punitive measures on speech which is protected by law, it still can promote measures of cultural and social education.

The law serves the function of ensuring that people are able to coexist in society with a certain degree of safety while still ensuring that everyone’s rights are protected. Therefore, ideally, it should both protect each individual’s rights while ensuring that human dignity is upheld by being sensible to context, intention, and take into account the harm of certain actions. However, the law also has the extra burden of trying to be as objective as possible in order to ensure that we can apply its principle to different situations and have a certain degree of clarity concerning what we are allowed to do. (1) Different courts must be able to interpret the law in order to rule in a similar manner on similar cases. (2) Different legislatures must understand what the overarching laws are in order to be able to create new rules that do not conflict with the overarching principles. (3) Finally, and most importantly, as an individual I must know what my legal protections are and what I am allowed to do/say in society in order to make conscious decisions.

What form would legal restriction on freedom of speech take? The European countries that have instituted some form of restriction have all found that a considerable degree of power must be given to courts in order for those decisions to take into account the context and intent of speech. However, creating this precedent would be problematic if the judicial system can be corrupted, and there are far too many instances in which countries violate the free speech of their citizens for us to be so optimistic. In the United States the historical restrictions of speech have always been used to further oppress minorities, and the current judicial system continues to oppress minorities through the intermittent application of laws — i.e., the enforcement of drug laws unjustly targets the black population of the U.S. Is it really worth taking this risk and giving the courts such corruptible power?

Even if we assume the best intentions of judges and politicians, the effectiveness of enacting legislation that limits speech is very complex, and there is no evidence that proves society as a whole benefits from prohibiting hateful ideas. Banning hate speech could have a great impact on our society and ensure these outdated ideals die off. On the other hand, banning certain speech could bring more visibility to the opinions banned, and give them strength as more people fight the government’s oppression by taking on the position that was banned. It would be naive and arrogant to assume that any individual has even a fleeting grasp of the future, and therefore can judge what ought to be done.

There is no way to justly limit freedom of speech and retain the objectivity that we demand of the law. Therefore, the solution to dealing with speech we find distasteful, offensive, disrespectful or uncivil cannot be found in speech restrictions nor legal punishments for speech acts.