We (Kind of) Have a Legal Right to Freedom of Speech
Freedom of speech is guaranteed in the US by the 1st Ammendment to our Constitution. This makes freedom of speech a legal right for US citizens. It is like the right to an attorney (6th Ammendment); it’s a rule that says what is and is not legal for our government to do. It is illegal for the government not to provide us with a lawyer (if we can’t afford one ourselves), and it is illegal for our government to keep us from saying whatever we want.
We take this rule more seriously in the US than in any other country I know of, but even here we don’t take it literally. We still have slander and libel laws, you can be arrested for “inciting a riot,” and we all know we’re not allowed to yell “fire” in a theater that isn’t on fire.
So, even the legal right to freedom of speech in the US is limited. But just because a legal right is limited or non-existent doesn’t mean there isn’t a corresponding moral right. It may be legal or illegal for the government to do something, but that doesn’t mean it is morally right or morally wrong for the government to do that thing. Women didn’t have the legal right to vote in the US until 1920. That meant the government could legally keep women from voting. But they couldn’t morally keep women from voting. Even though it was legal to exclude women, it was immoral to do so.
It’s worth asking, then, whether freedom of speech is a moral right.
What Are Moral Rights, Anyway?
If you have a moral right to do something, that simply means it would be morally wrong for other people to interfere with you in such a way as to keep you from doing the thing. If we have a moral right to freedom of speech, therefore, that just means it is morally wrong for other people to interfere with us in such a way as to keep us from saying whatever we want. (If, for example, we have the moral right to marry any other adult who consents to marry us, that would mean it is morally wrong for other people to interfere with us in such a way as to keep us from marrying each other.)
There must be a difference between interfering and not helping, however. I can believe you have the moral right to say whatever you want without it being morally wrong for me to not allow you to post whatever you want on my blog. Not helping you get your word out is different from cupping my hand over your mouth so you can no longer speak.
If I interfered with your right to freedom of speech, then, that would mean I did something to make it impossible for you to use your own resources, when those resources were required for you to speak. If I want to withhold my resources from you, that’s not interference. It’s when I make your own (vocal, monetary, land, etc.) resources unavailable to you for use in speaking your mind that I have interfered with you.
This doesn’t mean I can’t argue with you. I can convince you not to use your resources (e.g., not to open your mouth), because — if you are convinced by what I say — it would be you who are depriving yourself of the resources, not me.
But why should we believe there is a moral right to freedom of speech?
Do We Have a Moral Right to Freedom of Speech?
To know whether we have a moral right to freedom of speech, we have to ask if it would be morally wrong for other people to interfere (as defined above) with our saying whatever we want. The answer, it seems to me, is “yes.” It is wrong to interfere with other people saying whatever they want, because doing so is disproportionate.
The old rule, “an eye for an eye, a tooth for a tooth” is called the Lex Talionis — the Law of Proportionate Response. If someone steps on your toe, it would be disproportionate of you to cut off his foot. The proportionate thing to do would be to step on his toe. You don’t have to. You can forgive him. But it would be proportionate.
The idea is that if someone else does something to you, you should do no more to him or her than to do exactly to him or her what he or she did to you. No hand for a foot, no toe for a tooth, no eye for a finger. At most, you can take an eye for an eye, a tooth for a tooth.
So, what would be the appropriate response to someone talking? What would be proportionate? An eye for an eye, a tooth for a tooth, a talk for a talk. The most you can do to someone who has said something is to say something back.
But if all you may do to other people who are talking is to talk back, that means you are not allowed to truly interfere with their talking. To interfere, you would have to physically intervene in the situation by, for example, gagging them. That is, you would have to engage in a kind of physical violence. And if you respond to speech with violence, you have escalated, not acted proportionately. You have not done the same thing to them as they did to you. You have done more and worse.
The right to freedom of speech, in other words, is based on the fact that it is disproportionate — and hence wrong — to respond to speech with physical force. Physical force is only appropriate (proportionate) as a response to physical force. An eye for an eye, a tooth for a tooth, a speech for a speech, a punch for a punch, etc. The most you can do is to simply repeat what the other person did.
But What About . . . ?
“But what about people who incite riots?” Well, if all they themselves did was talk/yell into a microphone, all it would be proportionate to do to them would be to talk/yell back. It would be proportionate, however, to throw anyone who actually engaged in physical violence in jail.
“But what about mob bosses who order hits on their rivals, but never actually engage in violence themselves? Are you saying the only proportionate response to them is to argue with them, or call them names?”
I suppose so. I don’t like it, but it seems to me that the Lex Talionis says that you can only use physical violence against the hitmen themselves, because only the hitmen have themselves engaged in physical violence. People are not puppets, after all. An organization is not an organism. Corporations are not people. The individuals who act in physically violent ways are themselves acting, and thus are themselves responsible.
What you do with the people who incite the riots and order the hits is expose them to public scrutiny, refuse to engage in economic transactions with them, call for boycotts of them and any companies that work with them.
What, after all, is the alternative? If you don’t limit yourself to “doing back to people at most exactly what they themselves did to you,” you end up shooting cartoonists, flying airplanes into businesses, and firebombing the homes of people who write op-eds in favor abortion clinics.
