(I’m reusing this cartoon not out of laziness, but because it’s too perfect a cover image for the post.)
People are upset about free speech again.
But Bearistotle is here to solve free speech once and for all. You’ll thank me. Alas, it’s a long and complicated post. If you don’t want to read the whole thing here’s the most important take-away:
Free speech as an idea is of limited value. Free speech as a set of material conditions from which we speak is worth fighting for.
I outline this position at (tedious) length in the following essay. The first part of the essay begins by analyzing the Harper’s “Letter on Justice and Open Debate” controversy. The second section builds on this analysis to argue that we should stop treating free speech like a platitude to be affirmed and to start treating it like a set of material conditions to be maintained. The third and concluding section outlines some handy analytic tips for doing just that.
I. On the Trouble with Open Letters
Over the summer, a collection of public intellectuals published a letter in Harper’s called “A Letter on Justice and Open Debate” defending the values of “the free exchange of information and ideas.” Those lofty values were under threat, they claimed, from an emergent “censoriousness” in American culture: “an intolerance of opposing views, a vogue for public shaming and ostracism, and the tendency to dissolve complex policy issues in a blinding moral certainty.”
Signatories were luminaries drawn from across the spectrum of respectable American letters, meaning no dirtbag lefties or Trumpkins invited and the list leaned somewhat left. (Okay, fine, one dirtbag leftie: Chapo friend and Princeton historian, Matt Karp signed.) There were credentialed lefties such as Noam Chomsky, Arlie Hochschild, and Cornell West. There were also nominally conservative writers such as Bari Weiss, David Frum, and Cathy Young. As you scrolled through the list’s 153 signatories, you might have found it hard to put your finger on exactly how this group of people came together as a logistical matter. Sean Wilentz was there! So too was Garry Kasparov. And Wynton Marsalis. But also the guy who I only know about because he criticized Maya Angelou for using the title doctor in what is one of the worst pieces of hot take journalism ever published. And Yascha Mounk and Jesse Singal? But also J. K. Rowling for some reason? In short, the organizing principle seemed to be that the list was composed of random famous people someone had a connection to (that someone turned out to be Thomas Chatterton Williams), peppered with some not famous at all people who are, nevertheless, well-connected and have recently been criticized on twitter.
The total effect of this was perhaps less impressive to the intolerant mob than the signatories had imagined it would be. One suspects Williams was pleased at the intellectual and writerly firepower he had assembled. But, at a glance, the disproportionately large number of signatories affiliated with Ivy League universities made it clear this was a letter written almost exclusively from a very particular class perspective and it gave off the unmistakable stink of your betters sitting you down for a stern talking to. What might look to Williams like an impressive group of intellectual achievers, looked to this cynic like the well-connected shoring up their connections and doing so in an unusually smug and self-righteous way. Wasn’t censorious speech still… speech? And wasn’t, in fact, the letter’s speech, in directing people on what they should and should not say, rather censorious? From that perspective, the painstakingly curated intellectual diversity felt less like “unity in difference” and more like the lineup of the Moscow Music Peace Festival or maybe “Too Many Cooks.” And like all great media sensations—think Sting, Madonna, Beyonce, and Raffi—its notoriety (and then infamy) meant that people dropped the surname and simply called it the Letter.
I myself have a strong suspicion of the entire genre of the collective letter. I tend not to sign them—not that I was asked!—unless the letter calls for a tangible and specific action and unless I’m confident that I agree with every last word it contains. As a political tactic they have their place, but, as an expressive medium, I reckon that if I have something to say about a topic, I will say it in my own words. (“Have I told you about my substack?”) My experience is that the more people writing and signing a letter, the harder it is to come up with a letter that is both an honest consensus and anything more than platitudes. This is because it’s easy to agree on platitudes, but it’s much harder to agree on what those platitudes mean in the world.
And this was the greatest fault of the Letter: it’s the platitudes, stupid! Others may have disagreed with the Letter’s content, but, for the most part, I thought the content innocuous, bordering on banal. Beyond the Letter’s somewhat tendentious summary of recent events, most of what the Letter articulated was effectively Kindergarten virtues: be nice, be charitable, listen to others, don’t shout, turn the other cheek—frankly, basic lessons for polite social interaction that are as useful for Delivering Your Very Important Opinions Online as they are for ordering a latte. And all of these guidelines are great… until they’re not. For surely, all of the signatories would also agree that there are situations when you shouldn’t be nice, when charity is not called for, when you need to shout, and when you cannot turn the other cheek.
Put slightly differently, while most people think that “free speech is good” almost everyone also thinks, explicitly or implicitly, that free speech isn’t absolute. Someone insulting your friend at your dinner table is speech. Defamation is speech. Posting an ad looking for a hit-man to murder your wife is speech. Inciting a mob of angry protestors to storm the Capitol? Speech.
Where we draw the line between allowable speech and speech we should not allow is a matter of controversy. We can agree entirely on the abstract platitude that “free speech is good” and disagree substantively on what that means in terms of social decorum and legal consequences. Context and consequence are decisive and people… they do disagree! All but the wackiest libertarians would agree that you should go to prison for the hit-man ad, but most people wouldn’t send a rude dinner guest to prison—they’d just make them leave. We might even say that “free speech” is exactly the kind of “complex policy issue” the Letter warns against “dissolving” with the “blinding moral certainty” the Letter unironically exudes.
This gets to the root of the problem with how we think and talk about free speech—how we translate platitudes into the material conditions from which we speak. Consider again the Letter’s list of signatories. There are plenty of people on the list who I probably agree with in terms of what respecting free speech means as a matter of policy. But, immediately, my eye is drawn to Cary Nelson. For those who don’t know who he is, Nelson was a key figure in the Steven Salaita affair. Salaita was a tenured professor at Virginia Tech who was offered a tenured position at the University of Illinois. Salaita accepted the offer and resigned from Virginia Tech. Salaita was criticized for controversial tweets about Palestine and the University of Illinois revoked the job offer at the last minute, leaving Salaita unemployed. Nelson played a crucial role in all of this—both in leading the charge against Salaita and defending the revocation of the job offer. I think Nelson behaved wholly inconsistent with the principles articulated in the Letter and that you could make similar cases about other signatories such as Bari Weiss. I also think that Noam Chomsky almost certainly disagrees with both Nelson and Weiss’s respective conduct as well. In other words, there was almost certainly clear disagreement among the signatories about what respecting free speech means in practice.
The Letter’s defenders shrug this off as a charge about hypocrisy: “Maybe some of us are hypocrites but that doesn’t mean the principles are bad!” But hypocrisy isn’t the point I’m making. The point is that affirming an abstract platitude conceals the hard tradeoffs about speech that make it a “complex policy issue.” I think Nelson’s conduct was abominable. Ostensibly, Nelson disagrees! If Nelson and I can agree on the principle but come to diametrically opposed conclusions about how the principle should be applied, it suggests that the Letter is performing exactly the maneuver it is denouncing: evacuating complexity to shortcut substantive debate so you can score points against people you disagree with. When you mix in the Cambridge dinner party feel it’s easy to see why the Letter would vex and fail to convince anyone of anything.
II. Cancelers to the Left of Me, Believers to the Right
The problem with the Letter’s approach is that it has a confused narrative about what constitutes a threat to free speech and, thus, what kinds of action can effectively protect free speech. The Letter’s operative theory is deeply misguided but common enough. It presents the current conflict as pitting one group that wants to control what gets said against a group that does not want to control what gets said. In fact, to the extent that there are two distinct camps in the current free speech debates, both groups want to control what gets said. In this sense, the two camps—I’m calling them the Believers and the Cancelers—are actually quite similar. They’re both “working the refs” to benefit what they perceive is the optimal outcome given the current rules rather than focusing on changing the rules to benefit everyone.
That common story goes something like this. Free speech is an abstract set of moral commitments you believe in. When you believe in it enough you’re a true free speech believer, so let’s call these folks the Believers. But if people don’t believe in it enough they’ll start trying to punish other people for the speech that they don’t like. We’ll call these people the Cancelers. According to the Believers, the Cancelers may have earnest moral commitments to things like gender equity and anti-racism, but they go too far when they let those commitments trample on the ability of other people to express opinions without suffering severe adverse consequences. Of course, in reality, society has strict rules about how private citizens can punish each other for things they don’t like—for example, with few and complicated exceptions, you’ll get arrested for punching someone if they say something you don’t like—so the Cancelers are effectively limited to punishing speech through immaterial means: more speech, often in the form of denunciations or para-speech acts such as refusing association and boycotts. This is the censoriousness the Letter is concerned with. Immaterial means can have material consequences, of course. If enough Cancelers denounce someone, their boss may decide to fire that person. If their boss doesn’t fire them, maybe the Cancelers boycott the boss and the boss loses business and money. A boycott isn’t a material “object” but it can have grievous material consequences.
The Believers think that’s bad. So what’s their solution? To materially punish the speech they don’t like would be itself a restriction of speech, so consistency requires that they too are left only with immaterial means: they can write letters published in Harper’s or maybe just scold people for being too censorious. They would prefer to present these actions as educational or persuasive—“We’ll convince the Cancelers they don’t love free speech enough!”—but even if they are universally polite in how they say it, I anticipate these speech acts too will sometimes result in grave material consequences. Cancelers might be shunned. Maybe people won’t buy the books they write. Maybe their coworkers will avoid them at lunch. Maybe their friends won’t loan them money. And if it got really serious, there’s no reason why we couldn’t imagine a scenario where, because of at-will employment laws, a Canceler lost their job because their boss thought they were too censorious.
The Believers may say they don’t intend for there to be material consequences for the Canceler’s bad speech. “We’re just trying to educate you about how important free speech is!” they say. But the Cancelers have an identical response to complaints about their denunciations: “We’re just trying to educate you about the harmful social effects of your speech!” And the Believers may say they would never personally fire anyone for that reason nor would they advocate anyone else be fired for it. But they surely recognize that it can and almost certainly will happen. They surely recognize that many of the people wrapping themselves in the Believer banner are, in fact, doing just this. Moreover, things like social ostracism are the implicit stick to the high-minded educational rhetoric offered by the Believers. It’s disingenuous for The Believer’s to pretend like they can wash their hands of the material consequences of their own speech just because they didn’t explicitly call for those precise consequences. This is exactly what they complain the Cancelers do. Most of the time Cancelers just denounce people; they don’t stipulate that the person they are denouncing should suffer X, Y, or Z penalty. But that’s just a technicality! It’s assumed that the denunciation can lead to a material penalty, which is why people often leave the second part implicit, knowing they don’t have to say it or take responsibility for saying it.
The Believers would have you believe that only the Cancelers are trying to control what can and cannot be said, but that’s bullshit. Both the Cancelers and the Believers are trying to control speech. They have different preferences about allowable content. And they strike different tones. But both have the same strategy for the regulation of speech that they think has bad consequences. Things get more complicated when one recognizes that many everyday participants in this debate—the people shouting about it on the internet—step between the camps at different times and having varying degrees of good faith and consistency when they talk about it. MAGAs who complain about cancel culture, for example, may strategically participate in the cancellation of a leftwing speaker under the analysis that what’s good for the goose is good for the gander. They may argue that they don’t think people should be fired for voicing their opinions, but as long as their political enemies are doing so they can’t afford to unilaterally disarm. This is less true of the signatories of the Letter, but these sorts of tactical cancellations are common enough and it means that, functionally, Believers and Cancelers are constantly switching hats.
My position here is that I largely agree with the Believers that believing in free speech is a good thing. But belief alone just doesn’t do very much! To put the matter slightly differently, both camps are making cases about what sorts of speech should be socially acceptable within the constraints imposed by the existing rules and distribution of resources. That’s exactly as it should be. But if you don’t think speech is “free enough” and you want to make it substantively easier for people to say what they want, you’ll have to do more than pontificate about how swell free speech is; you’ll have to actually change the rules and material distribution of resources. Stop whining about free speech in pompous open letters and start arguing for better rules.
What I’m suggesting here is that people speak from material conditions that are far more relevant than the particular persuasive content of any given person’s thoughts about free speech. Of course, the signatories to the Letter have quite a bit of ego-investment in the value of the persuasive content of their speech, so it’s not surprising that they overvalue it as a weapon to “protect free speech.” You and I aren’t required to fluff their egos. We can see that the problem here isn’t persuasion and commitment; it’s the prevailing material conditions from which people speak.
Some of those material conditions are dictated by law and intersect with the formal content of the speech in question. It is a material condition that you have fewer guns than the government (I hope) and if you use your speech to plot a terrorist attack (bad content) they will probably come and arrest you (a material penalty). But other conditions are about how society distributes resources and the content of the speech is mostly a second-order consideration or irrelevant altogether. In many states, your boss can fire you for almost any reason and that might include you expressing any opinion that your boss does not like, political or otherwise. This is, at its core, about the power your boss has over you and not the specific political content of your speech: maybe your boss fires you because you said you liked the New England Patriots or maybe your boss fires you because you said you were an American patriot. The point here is about how economic power intersects not only with what can be said but also with who gets to decide what can be said. Meanwhile, it’s all less of a constraint if you have a million dollars in your bank account. Similarly, access to expressive media is also a relevant constraint. You can always say whatever you like if you’re only ever speaking to the mirror. The owners of the New York Times are constrained in different ways than the owner of a twitter account with 12,000 followers are constrained in different ways than a hermit who lives in the woods. They each have different opportunities to speak and those opportunities are shaped by their material conditions.
People will continue to quarrel about what sorts of statements should be allowed and what sorts should not, but I think the whole conversation would be improved if we started our analysis from those material conditions and then considered how we could make those conditions more equitable for everyone in society. In the next section, I run down some handy analytic guidelines about what that might look like.
III. 4 Weird Free Speech Tricks to Avoid Making an Ass of Yourself
1) Be Clear on What Speech Does
There’s a vast literature from linguistics, the philosophy of language, communication studies, and performance studies about the nature of speech, and I’m going to glibly dismiss it now in a way that will irritate anyone with that sort of training. Sorry. But here’s my basic schema for understanding how speech works. It’s over-simplified, sure, but this substack is free so what are you complaining about?
Speech has at least three clear functions:
First, the expressive. You want to express an idea, concept, or proposition you have. Importantly, because something is expressed, and because you desire for it to be expressed, does not require that it be communicated. You might, for example, scream in frustration to express your feelings without a care for anyone else hearing it or without the need to explain to anyone who did hear it why you had done so. For expressive speech to be effective it need not be understood.
Second, the communicative. You want to communicate an idea, concept, or proposition that you have to other people. If you expect other people to change their behavior when it frustrates you, you probably cannot just scream unintelligibly. You have to explain what’s bothering you in terms your audience will comprehend. You may even want to explain it in a way that is tailored to achieve your instrumental goal. For communicative speech to be effective it must be understood.
Third, the performative. You want speech to do something (in addition to expressing or communicating). This one is the most complicated and often subject to confusion. And if you misuse it in print, Judith Butler might gently scold you in an email! Speech acts are acts, and a performative speech act is one that transforms the world through its very expression. The classic example is when the Preacher says, “I now pronounce you husband and wife.” The preacher’s utterance makes them married. The Preacher may preface their statement with the words, “By the power vested in me by the Nevada Gaming Commission” and this gets at an important subtlety. Some theorists would contend that all speech is performative to some extent, at least insofar as an utterance affects the emotional and cognitive states of both hearers and listeners, but, generally, formal performative utterances need to be authorized: they are regulated by rules, formal and informal, that authorize only particular speakers to perform and limit the context when they can do so. Without the Nevada Gaming Commission, the Preacher is just a guy in a rhinestone cowboy suit. And if he tries to marry people in, say, Panama City, Florida, it may not carry the same force of law. For these formal performatives to be effective, the speech must be authorized.
In everyday life, these three functions blur together. When you shout at the kids to get off your lawn, you are both expressing and communicating anger. When you tell the car salesman that you’ll “take the red convertible,” you are communicating the fact that you are having a midlife crisis and performing part of an economic exchange. This is because speech acts can do many things at once and because the boundaries between an immaterial thought and a material action are not clearcut. Indeed, to the extent that every word spoken exists as vibrations in the air and words are written in ink, there is always some materiality to speech. What does a thought expressed affect? It’s hard to say for certain! This is why things like incitement, threats, slurs, and boycotts are so tricky: they are speech acts that are inseparable from efforts to transform social reality and thus are exercises of power, not merely expressions of thoughts.
The problem is that defenders of free speech in abstract tend to sentimentalize the expressive and communicative functions of speech while neglecting a realist’s account of speech’s performative functions. Worse still, they give a muddled account of which of speech’s functions require it to be “free.”
On the one hand, some will say, “People should be able to say whatever they like.” That’s an argument about expression. You can set up rules to let people say whatever they like, but that’s not the same thing as making sure that they’re heard, much less understood. On the other hand, you will hear the same people say, “The solution to bad speech is more speech. The best ideas prevail in a marketplace of ideas.” That’s about communication not expression! If your theory is that people will scrutinize each other’s ideas and collectively refute the bad ones, it’s crucial that people not only be able to express themselves, but that they also be able to communicate those thoughts and to do so effectively. And nobody thinks people should be totally free in their formal performative utterances: the Preacher ought not be authorized to legally people who don’t want to be married just because he says the words.
Meanwhile, none of this explains why free speech, for example, means that one student in a classroom should be able to call another student a slur. When Mel tells Sam, “You only think that because you’re a nasty faggot,” they’re not (just) trying to express their belief about Sam nor (just) trying to communicate that belief to Sam; they’re trying to affect Sam and make Sam feel bad, angry, sad, or some such thing. If (and it’s a big if) Sam’s classmates “refute” Mel—the communicative theory—that doesn’t necessarily undo the performative effect of the speech. Sam may already feel terrible and angry, and, regardless, making people angry is a way to ensure that passion not reason guides the conversation, circumstances that don’t fit well with the whole communicative premise of rational debate leading to good outcomes.
If different speech acts have different functions it makes sense to establish rules of conduct that are specific to the context of the speech and not to collapse those rules into abstract all-purpose justifications. When the Vice President is presiding over the certification of the results of the electoral college, for example, it is not time for him to express his true opinions about the election nor to communicate why those beliefs are correct; he’s there to do a defined and essential job—to perform—and he ought not have the freedom to diverge from it. His speech, in that capacity, should not be free.
2) Stop Calling Things Town Halls
This leads us to our next point: Not everything is a goddamn “Town Hall.” Indeed, most town halls are not “Town Halls.” Stop saying this. It’s not helpful.
Americans tend to have a nostalgic misunderstanding of what town halls were and are. The collective myth is that back in Puritan New England, self-governing colonists got together to decide matters deliberatively in an assembly where everyone spoke and voiced their opinion and then they voted. That sounds nice!
Without getting to deep into the weeds, this is bullshit. Those assembly halls were also churches, the colonists were viciously intolerant of dissent, and they were known to banish and execute one another to settle political disputes. It’s true that the high-minded aristocrats of the revolutionary generation espoused more enlightened views on free speech on some questions, but they also usually had very limited venues consistent with (small-r) republicanism in mind: the free exchange of ideas implicitly happened among the educated sorts (read: rich, white, and fancy men) who could be trusted to govern and the First Amendment was a check only on the federal government. Local and state governments were permitted to—and regularly did—regulate political speech (sometimes with the assistance of Congress) and the First Amendment was not “incorporated” into the Fourteenth Amendment, and therefore held to constrain state and local government as well, until 1925. Indeed, most of the more capacious articulations of freedom of speech we take to be timeless elements of national character, are distinctively post-World War II artifacts.
The point here isn’t that previous generations were right and that we’re wrong or the other way around; it’s that nostalgic views of free expression invent and then universalize a mythical model for political speech that is not terribly helpful. It’s not helpful because nearly all speech venues that currently exist in American society are dual use and because most of them are private, appointing things “town halls” is a way to demand that the space someone else owns and is legally responsible for has to be used as you would prefer rather than how they would prefer. My living room is not a town hall. It’s where I doomscroll in my underwear and eat blueberries by the pawful. A restaurant is not a town hall. It’s a place where people go to eat, be social, and be waited on. My college classroom at Duke University is not a town hall. It’s a place where people pay money to receive instruction from me on the advertised course topic. National Review magazine is not a town hall. It’s a publication written from a particular conservative perspective that must appeal to it’s core audience of people who forgot to cancel their subscriptions when it finally stopped being explicitly pro-segregation.
Each one of these venues has a specific purpose and the persons who control it get to decide whether your conduct—including your speech—helps or hinders that purpose. How they should be allowed to regulate that conduct is, in turn, a matter of political debate and some rules will apply—the restaurant has to follow public accommodations laws—but make no mistake: in capitalist society, the person who owns the space gets to decide in consultation with the government, not in consultation with you. And if you don’t like that, well bub, you need to change the rules about property not about speech.
You might, then, also ask yourself this question: why don’t we have publicly owned spaces where people can go to discuss and debate political questions? In other words, why do we keep turning everything into “town halls” rather than just, well, building town halls? The answer, my friend, leads you back to property. To build and maintain common spaces, you need taxes and the libertarians who will complain most bitterly about free speech infringements also happen to be the ones most violently opposed to taxation. The result is that rather than chipping in to build town halls, they’d prefer to waltz in and turn my living-room and your restaurant over to their purposes. And that’s because they don’t actually believe in the robust ability of individuals to co-determine the course of their lives as a general principle for social relations; they believe in their own license to do whatever they like.
Never has this been clearer than in the case of Twitter. In the past five years, largely due to Trump, conservatives have convinced themselves that Twitter is now “America’s town hall,” the place where they should be able to go and say whatever specious nonsense they like whenever they like it. And if their license interferes with how other people want to use the website, too bad. Or is it? It turns out that the same conservative movement has spent the last half century weakening the ability of the government to regulate private companies, slashing anti-trust regulations, endowing corporations with their own expressive rights, and generally making it so that private companies can do whatever they decide is in their best interests. Conservatives built the regulatory environment that Twitter operates in and now they don’t like the results. But instead of changing those rules, they’re complaining that it’s not fair that Twitter has decided it is in the company’s self-interest to suspend Qanon accounts. Maybe it isn’t in Twitter’s self-interest, but the rules conservatives have fought to give Twitter the right to determine its own self-interest and to pursue it ruthlessly. That’s what Twitter is doing.
Rather than whining like big losers about how unfair Twitter is being (and pretending like they actually like Parler) conservatives should recognize a few things. First, they may have mistaken Twitter for a public infrastructure, but that’s their mistake, not Twitter’s. Second, it they want to make Twitter a public infrastructure that has to treat users in a politically neutral fashion, they will need to radically alter existing legal frameworks. Ironically, the one rule change they support, revocation of Section 230 of the Communications Decency Act, would almost certainly have the opposite effect than what they intend: If Twitter were held liable for content posted on its website, it would have greater leeway and incentive to moderate tweets for harassment, defamation, and incitement.
3) Bad Facts Make Bad Law
Speaking of Twitter, the ban that bothered people the most was Trump’s. This resulted in unbelievably inane complaints that Twitter was interfering with Trump’s freedom of speech. As my brilliant friend @walmflinsdorf noted, this is an utterly nonsensical claim akin to asking if the President has the right to a firearm. Who cares?! He has an entire navy. Does the President have the right to free speech? Who cares?! He has an entire room in his house where journalists go and wait for him to speak.
We could begin our analysis of the Trump twitter ban with the confusions identified in (1). First, what was the function of Trump’s twitter speech that required protection? If it’s expressive, well, who gives a shit? He write in his diary or call in to Fox & Friends if he needs a safe space for his feelings. Was it functionally performative (i.e. necessary to the exercise of his responsibilities as President)? Although the President has (apparently) fired people with tweets, it’s not clear these actually had the force of law and, certainly, he had other options for that speech: a voicemail, text, letter to the editor, a telegram, snapchat, etc. The strongest argument is that Trump’s twitter speech was communicative about matters of public interest because he was the President. And here we start moving into (2): it’s a huge problem for a free society when the communicative functions (contra performative) of a president’s speech compel action from private actors, essentially shoving the owners of Twitter aside so the President can do and say what he wants when he wants.
This is, in fact, very clearly authoritarian: Dear Leader wants to tell you something and he gets to coerce other parties so he can do so. It is true that media has been deferential to presidential speech—they televise addresses and they publish their statements in the newspaper—but they do so voluntarily and they get to contextualize that speech how they see fit. A network may air a presidential address, but its analysts also get to immediately point out the problems with what the President has said. In other words, the president’s communicative speech is part of a dialogue and a free media will ideally select other participants in that dialogue to scrutinize the President’s speech. If you don’t like how they do that, you can, of course, change the channel.
What Trump liked about Twitter was not that it was a communicative medium—there are plenty of other ways for him to communicate—it’s that it was a communicative medium that allowed him to have direct, unmediated, monologic, and unparalleled access to the nation’s head space. Sure, people replied and QT-ed his tweets, but no one was a bigger voice with more impressions and more favs. And that meant that Twitter felt good to Trump. He enjoyed it. And he was angry when they took it away.
This is the important part: Trump didn’t just use Twitter because it furthered his political project; he used it because, like its many other users, Trump was probably addicted to the little hits of dopamine he got every time he tweeted.
Properly understood, Twitter isn’t a communications company. It’s a gaming company. Their platform is a “sandbox game” about speech. Different users “play” differently. They issue and read utterances for desired outcomes. Some users are trying to rack up big follower counts and never read anyone else’s tweets. Some users like to read other people’s tweets for information and edification and they spend time figuring out who it’s best to follow. Some users just want a place to make jokes and see if they can make one go viral. Some users are trolls who delight in drawing (what they perceive to be) negative emotional reactions from other users. Some users are just looking to “dunk” and don’t really care all that much who they dunk on or how they do it. All these users play in the same venue, they navigate and interact with each other, and they all get to define their own objectives. They also choose the “content” of their speech: some people dunk on political tweets; others dunk about pop stars. This is what makes Twitter a fun game to play, even if people don’t know they’re playing a game.
Some people may wind up using the game to advance their political goals, of course. Politicians tweet statements. Journalists tweet breaking news. Intellectuals tweet their latest substack post. Activists tweet directions to the protest. But any game can be used to advance a political goal—you can spell “communismrocks” on a scrabble board—but that doesn’t mean that everyday use of the medium needs to be regulated according to those political uses. (Remember (2): Just because I can give a speech in a Denny’s, doesn’t make the Denny’s a town hall.) Moreover, it would be good to be a bit more realistic about why conservatives want everyday, regular access to Twitter. Is it so they can express and communicate their political opinions? Give me a break. It’s not about high minded ideological battles. It’s about gaming. It’s about how Jack took their toy away. Boo-fucking-hoo. We don’t need to rewrite federal code just so they can get their Twitter dopamine hits.
But we should be willing to ask serious questions about the actual nature of substantive threats to everyday speech. Above, I already outlined the idea that material constraints are actually quite important and that, from that perspective, people’s ability to speak freely is actually constrained on an everyday basis by power relations that allow some (few) people to control the social viability of everyone else. Friends, that’s called labor law! As I put it in a viral tweet, “All the conversation about free speech and cancel culture would be greatly improved if they started from the objective and obvious fact that, for most people, the number one threat to your free speech is your boss.”
Too many current conversations about free speech start with bad models for how everyday restrictions on speech work: Trump, the New York Times OpEd page, and college classrooms. All of the underlying controversies do involve real and complex questions about how speech should be regulated, but they are all quite exceptional and they appeal to certain “knowledge class” intellectuals who see their rarified interests at stake in the debate. But centering those controversies and making rules on that basis is a bad practice. As the lawyers say, bad facts make bad law. You try to come up with rules that are applicable to 99% of the fact patterns you will encounter and then come up with workarounds for the 1% of truly weird fact patterns. Centering debate on the access of professors, intellectuals, and journalists to positions of prestige and influence in legacy media is bound to come up with a set of fact patterns that is not helpful to the most troubling and common limit on free speech: you said something your boss didn’t like and he fired you.
4) Free Speech as a Material Commitment Requires Debating Policies Not Platitudes
The point of all this is that debates about free speech are stuck in an unproductive loop of partisan factions complaining bitterly that the other side doesn’t care about free speech. To whatever extent this is true, few people insert practical and actionable policies into that debate. They leave it at the level of an abstract commitment and so they, quite literally, don’t put their money where their mouths are. If you care enough about free speech to complain about it, you should care enough to invest material resources in enhancing it. I outlined what I thought would be substantive policies that would promote freer speech in a twitter thread in July. You can read the whole thing if you like, but it’s excruciatingly long (not unlike this post)! To save you the trouble, I’ll summarize the big takeaways. I argued for three big clusters of policies:
1) Decommodify Speech: If we really value speech, we need to make sure it doesn’t only belong to the rich. That means building and maintaining a robust public infrastructure for speech that everyone can access (the aforementioned “town halls”) rather than trusting the free market to provide a social good it has no incentive to offer. Policies in this section included regulating traditional and social media as public utilities; investing in education, press, and the arts; and substantially reforming existing intellectual property law.
2) Decouple Social Viability and Employment Status from Substantive Speech: To the extent that people shouldn’t be able to say whatever they like, whenever they like, it still isn’t the case that people’s basic social viability—their ability to feed, clothe, and house themselves and their families—should be threatened when they say something other people don’t like. If society guaranteed all those things as a matter of course and enacted stronger worker protections, it would be both much harder to “cancel” most people and it would matter less when they were canceled. Policies in this section included universal single-payer health care; the end of at-will employment; laws that make it easier for workers to unionize; and a universal basic income, universal basic wealth and/or a guarantee of employment.
3) Strengthen the Expressive and Communicative Content of Formal Political Acts: It’s a problem when people feel like their elected officials aren’t listening. It makes people angry and that anger (and angry political speech) spills into all sorts of adjacent social relations for better and worse. In theory, the easiest way to “make yourself heard” by a politician—to communicate how you feel—is to get together with other citizens and vote them out of office. But our dysfunctional political system makes it very hard to do that. One of the reasons that people keep on “turning things into town halls” is because they don’t feel like the formal political acts of individual citizens have any force. They redirect those expressive and communicative desires to other venues that are not designed to facilitate them. The solution, then, is to reaffirm and strengthen the expressive and communicative content of formal political acts: make sure people feel like they are actually sending a message when they vote. Policies in this section included a renewed and strengthened Voting Rights Act; a Constitutional Amendment guaranteeing a right to vote; substantial electoral reform; and the abolition of the United States Senate.
If you read through the list of policies, you’ll see it’s much more expansive than just this, so much so that people complained that I had included a bunch of policies that were only tangentially related to free speech. But that was the point! The only policy anyone ever wants to debate on the topic of free speech is the content and meaning of the First Amendment, and that’s why those debates are limited. You may disagree that some or all of these policies are relevant or desirable for the task of enhancing free speech, but to make that case you’ll need to assess them in particular relationship to the problems of free speech as they exist, and that’s the intellectual exercise I want to stimulate. In other words, debate me bro! Or, at least, make a case for which policies won’t work or are bad and then propose policies that will.
My assumption is that people from different ideological and partisan orientations will come to different conclusions and, like all debates, this one will never be concluded. But moving free speech from the terrain of platitude to policy would be a decisive improvement that could lead to some real good in the world. At the very least, it might lead to fewer open letters.
ETA: I’ve corrected my usual typos and some blown hyperlinks. I also smoothed out some chunky prose and, thanks to feedback from Lee Vinsel and Danny Bessner, corrected some minor errors in the descriptions of the Letter signatories.