Free Speech and Abortion

The Supreme Court ruled today in NIFLA v. Becerra that a California law requiring pro-life crisis pregnancy centers to provide information about abortion access likely violates the first amendment of the constitution. I’m inclined to think that the Court ruled correctly. If free speech means anything, it protects individuals from being compelled to speak in a way that violates their fundamental moral convictions.

In a brief concurrence, Justice Kennedy gave an impassioned defense of free speech. He claimed that through this law, California sought “to impose its own message in the place of individual speech, thought, and expression.” Such an imposition, he continued, approached the most despotic of tendencies: “history since [the founding] shows how relentless authoritarian regimes are in their attempts to stifle free speech.” We must “preserve and teach the necessity of freedom of speech” as embodied in the first amendment, and we must never allow the state “to force persons to express a message contrary to their deepest convictions.” Strong stuff, indeed. Justice Kennedy here articulates the standard liberal thesis that free speech stands at the center of a free society.

But, let’s not forget, Justice Kennedy is the swing vote on today’s Court finding a constitutional right to abortion! In other words, Justice Kennedy argues ferociously for the free speech rights of pro-life activists, AND he argues ferociously that those pro-life activists’ arguments should never be able to democratically succeed. Sure, pro-life activists should be legally permitted to argue their case in the public square. But even if those activists persuade a majority (or a supermajority) of their fellows to oppose abortion, Justice Kennedy replies: “Too bad. Abortion is here to stay no matter what a majority of the people or their representatives might want.”

I complained in my previous post about campus free speech arguments that suffer from a similar fault. On a college campus, the best argument for free speech is “I might learn something new.” In a democratic society, the best argument for free speech is “we might learn something new.”

To be clear, I’m not especially bullish on free speech. I find Millian “marketplace-of-ideas” arguments highly suspect, and I think there are plenty of good reasons to question a regime of largely untrammeled free expression. But IF there are decisive arguments in favor of free speech, “this is a useful way for free societies to arrive at democratic decisions” must be pre-eminent among them.

Of course, other arguments are often given. We might defend the sacred right of the white supremacist to defend slavery, even as our constitution prohibits a majority of voters from every re-instituting the practice. (Personally, I find such arguments thoroughly uninteresting). So there is no necessary contradiction in Justice Kennedy’s position. But it points us, frankly, to a silliness endemic in contemporary liberal discourse. It is difficult to take seriously a romantic defense of free and open expression that reduces to: “Believe what you want, argue your convictions, debate and persuade others of your view! But remember, no matter how many people you convince in the marketplace of ideas, there’s nothing you can ever do to change the law.”

One Bad Argument in Favor of Free Speech

I generally have an ambiguous attitude toward free speech. In some spheres we profit from a healthy, free exchange of ideas. In other spheres, guidance and regulation of discourse are required for intellectual and social advancement. So I am skeptical of any simple account of free speech as a universal principle. I favor a more piece-meal approach.

But there is one argument in favor of free speech—an argument especially popular in contemporary defenses of campus free speech—that strikes me as especially weak. This is a version of the argument that sometimes goes: The best way to combat bad speech is with better speech. The specific species of this argument I object to is one that insists that we shouldn’t censor bad, dangerous, ideas; we should combat them with better arguments. The best way to defeat bad ideas is through intellectual refutation.

There is an empirical premise here I find highly dubious. Namely, the premise that ideas operate as some kind of marketplace tending toward better quality over time. I don’t think that’s true of the economy, let alone ideas. (Something like the opposite is often true in both realms)

But that’s not my major objection. It seems to me that this is the wrong way to think about the value of hearing opposing viewpoints. The only good reason for an undergraduate to go to any lecture, seminar, or debate is if the undergraduate thinks he or she will learn something from the event.

That kind of learning can fall into a couple categories. (1) We might attend a lecture on a topic we know nothing about to replace ignorance with knowledge. This is why we might go to a lecture on  late developments in the field of Egyptology, for example. (2) We might attend a lecture given by someone with whom we disagree so that we can take seriously their arguments in order to evaluate our own. This is the classic JS Mill case. A liberal should listen to thoughtful conservative arguments in order to critically assess his or her own views. (3) We might attend a lecture given by someone with whom we disagree so that we can sociologically understand why it is that so many people hold what we take to be bad ideas. This is why we might (might!) be interested in hearing someone from the KKK, for example. Not because we want to critically assess our own opposition to white supremacy, but because it can be sociologically illuminating to understand why some people hold views we take to be so repellent. In some cases (though not in the KKK case), this kind of sociological knowledge might be helpful in indirectly shaping our own views. Trying to understand why people voted for a candidate we abhor might help us think through how "our side" can better respond to these people's genuine grievances, for example.

But it’s silly to attend a lecture just so we can ask aggressive questions or attempt to refute the speaker. If a student thinks from the outset that he has nothing to learn from a given talk, then he shouldn’t go! If he does go, he should be open to learning something new. And if we are convinced that a particular speaker won't help us learn anything new, then it is difficult to see why that speaker should be invited at all.

(I've written about campus speech issues here and here).