So you think you’re a free speech absolutist?

Think again...

“I’m a free speech absolutist,” harumphed Elon Musk last month as he hovered on the threshold of conquering Twitter. Yet far from salivating about new opportunities for clickbait, global markets got the jitters. Advertisers suddenly hesitated about the appeal of a forum that seemed happy to welcome back neo-Nazis, QAnons, Proud Boys, racists, misogynists, antisemites, Islamophobes, homophobes, transphobes, and all and sundry conspiracy theorists.

The tag of “free speech absolutism” has been around for ages. Perhaps this Christmas you will be lucky enough to sit at the dinner table next to your crusty old uncle who, at the first whiff of woke, will bang his fist on the table trumpeting “I’m a free speech absolutist!”

As for me, when it comes to free speech I’m happy for you to take whatever position you like. My only concern is that when the topic arises you should just try to know what you are talking about. So please, let’s take a moment to iron out one perennially stubborn wrinkle once and for all: There is no such thing as “free speech absolutism.” Not even the world’s most zealous libertarians can coherently advocate such an idea. In fact, the kind of freedom they can coherently advocate is still far from obvious.

There are several reasons for this. First, although we commonly use the phrase “free speech” what we technically mean is “freedom of expression.” This is because communication includes not only verbal but also non-verbal messages, such as publicly waving swastikas or peace signs. Some of the most dramatic communication takes the form of speechless conduct – that, after all, is one key feature of terrorism.

Obviously, if free expression were absolute then terrorists would have to be free to commit mass murder, since even drawing a limit there means that expression cannot be absolute. The same goes for verbal expression, as in the example of false advertising. You have no right to sell rat poison with a label that reads “Refreshing Multivitamin Tonic.”  Nor do such limits stop at the point of killing or harming people. After all, given that libertarians place high priority on private property, they would never grant your right to spray graffiti on their homes (or at least, to do so without their consent).

If you raise these kinds of objections to self-appointed absolutists they will usually respond: “Well, no, obviously I don’t defend the freedom to cause (non-consensual) harm to persons or property. I’m talking only about free exchange of ideas.”  So in defending their absolutism they have already negated it: by definition, nothing can be both absolute and subject to limits.

And that’s not the only problem with this failed reformulation. If ever there was a condition that showed the absurdity of claiming an absolute freedom, then surely it is one that makes our freedom depend upon whether or not we cause “harm” when we exercise it.  In 1859 John Stuart Mill, in his book On Liberty, tried to define individual freedom in precisely that way, arguing that our freedom should extend only so far as no harm would be caused to others. But then all he achieved was to substitute one catch-all concept with another. He wanted to clear up vagaries haunting the amorphous concept of “freedom,” but then rendered “freedom” entirely dependent upon the equally amorphous concept of “harm.”

After all, what counts as “harm”?  Certain harm?  Highly probable harm?  Reasonably probable harm?  Even if I label rat poison as vitamins it is still not certain that someone will drink it. So the so-called absolutist is presumably arguing that the law may intervene where government officials determine that there is some sufficient probability of harm. But then which criteria determine “sufficient probability”?

For example, no libertarian would defend our right to lie under oath as an exercise of free speech. This is because courtroom perjury could lead to a wrongful verdict. Yet that harm, too, is far from certain in all cases. Surely there are cases in which a verdict would turn out the same even if someone does lie on the witness stand, for the simple reason that there is enough evidence to support the verdict independent of that particular testimony. But this means that even libertarians end up accepting limits to free speech under some circumstances where the probability of harm may be low.

So it is still far from clear what, if anything, self-proclaimed free speech absolutists think they are defending.  Perhaps this is what they mean: “Speech should be free, subject only to reasonable restrictions.”  And yet that would be the most un-absolutist formula of all.  Governments always describe their limits as “reasonable.” It will be a sunny day indeed when we can all get together and agree about what counts as “reasonable” and as “reasonable limits” to free speech. The fact that free speech absolutism is nonsensical means that all of us do accept limits to expression and we are merely disagreeing on which limits to accept and which ones to reject. (We were recently treated to an inadvertent satire of this home truth. Just hours after announcing that Twitterers were free to post whatever they liked, the “absolutist” Musk started imposing limits by demanding that parody accounts not self-identifying as such would be blocked.)

But then if an absolutist position is meaningless, is there any other philosophy to take its place?  When Ricky Gervais jokes about trans people many of his defenders self-describe as free speech absolutists, so what exactly are they defending? In two of my recent books I have proposed that we should replace the phrase “free speech absolutism” with the phrase “viewpoint absolutism.”  A viewpoint absolutist does not insist that “all” speech or expression should be legally protected. Instead this concept means that it would be illegitimate for the law to impose penalties on speakers solely on grounds of the worldviews, or viewpoints, that they are expressing.  In other words, we can admit controversial speech, for example about trans rights, without having to allow people to sell rat poison labelled as multivitamins.

This approach will not solve all problems, but that should come as no surprise. There is no single algorithm that will ever solve all problems associated with free speech, not least because there is not even any agreement on what counts as the “problems” caused by free speech. In an age when social media fill up with millions of postings per hour, governments may be able to crack down on companies but cannot crack down on individuals in any legally or politically coherent way. For the foreseeable future wise government policy will be geared less toward punishing our speech and more toward teaching users from a young age how to develop a critical sense of what they read and how to interact with it.