Several recent arguments trying to justify further free speech restrictions by appealing to harms that are allegedly serious enough to warrant such restrictions regularly fail to provide sufficient empirical evidence and normative argument. The two recent arguments critically examined here confirm this picture. Ann E. Cudd tries to make all kinds of clearly protected free speech responsible for “trauma.” However, she misrepresents the psychological studies she relies on and her account legitimizes anti-speech violence on a massive scale, which renders it morally absurd. Melina Constantine Bell tries to combine John Stuart Mill and psychological studies to argue that sexist and racial jokes and slurs produce severe harm and should therefore be restricted. Yet the studies are flimsy and the picture of Mill unrecognizable. I will, then, address, as a corrective to the one-sidedness of those who warn against the alleged harms of free speech, the harms imposed by
Arguments that try to justify free speech restrictions that go beyond the restrictions already recognized by even very permissive and libertarian accounts of free speech as well as by First Amendment law usually proceed by conjuring up all kinds of “harms” that speech considered to be protected might nonetheless produce. Thus, these harms are deemed so serious as to justify speech restrictions. Normative argument for the claim that they are sufficiently serious is seldom, if ever, produced; and the fact that free speech theory denies that serious harm is sufficient for justifying restrictions is almost always ignored.
The two recent arguments for further speech restriction critically examined here confirm this picture. Ann E. Cudd tries to make various kinds of clearly protected free speech responsible for “trauma.” However, she misrepresents the psychological studies she relies on and her account legitimizes anti-speech violence on a massive scale, which renders it morally absurd. Melina Constantine Bell tries to combine John Stuart Mill and psychological studies to argue that sexist and racial jokes and slurs produce severe harm and should therefore be restricted. Yet the studies are flimsy and the picture of Mill unrecognizable. I will address, as a much-needed corrective to the one-sidedness of those who warn about the alleged harms of free speech, the harms imposed by
A critique of free speech that applies double standards and must do without empirical evidence has recently been offered by Ann E. Cudd. While this author and academic officer
Cudd knows that even speech that “cause[s] harm” is often “still protected by First Amendment doctrine.”
This poses a problem for Cudd’s argumentative goals. After all, she admits that “most U.S. universities … are held to strict interpretations of the First Amendment that proscribe most restrictions on speech, particularly outside the classroom.” But she thinks there is a way out. After this admission, she continues:
Yet, expressions that create a hostile environment oppose inclusion because those who are victims of this hostility are made to feel that they do not belong in the university and claim that it poses a threat to their safety and well-being. Speech act theory helps us to see how speech can do harmful things through an utterance’s conventional illocutionary force. Trauma can be triggered by experiences that shatter our assumptions that the world is benevolent and meaningful, and that the self is worthy. Toxic and oppressive speech are harmful forms of speech because they shatter these assumptions about the world and the self.
I shall therefore focus on her trauma claim, which offers us an unwitting but telling self-caricature of the currently popular “free speech is very harmful and should therefore be restricted” argument. Cudd claims that the distinction “between mere words that are experienced as offensive or hurtful and physical harm or the (credible) threat of physical harm” can be undermined by “the neuroscience of trauma.”
Let us follow Cudd’s trail through the “psychological literature.” This literature, she tells us, “is replete with studies in humans linking traumatic psychological events to symptoms of post-traumatic stress disorder (PTSD) and other mental disorders,” which “suggests … physiological damage to the brain.” This is also confirmed by “studies on rats” exposed to “stress” as well as by “magnetic resonance imaging (MRI) studies of humans with PTSD.” Cudd further states that “trauma is often thought to be triggered mainly by fear of death of oneself or a loved one, which can be brought on by experiencing a threat but also by learning about the death of or violence against others.” Yet she then assures the reader that “psychologists have also posited that … trauma can also be triggered by other psychological mechanisms,” in particular “by experiences that shatter three key assumptions humans make about the world: ‘that the world is benevolent, that the world is meaningful, and that the self is worthy.’”
For the claims I just quoted, Cudd provides references to empirical studies. However, after informing us that the shattered assumptions paradigm “explains the effectiveness of domestic terrorism,” she
For
As regards the stressed rats: they were stressed by repeated subcutaneous injections of vehicle oil or by being restrained in decapicone bags for three hours daily for one week.
Finally, the book chapter on shattered assumptions to which Cudd refers focuses “on influential theories of reactions to
Cudd’s problem lies not only in her attempt to restrict speech on the basis of a hypothesis for which she has no evidence, but also in her double standards. She is throwing stones from the glass house. She states that it is “possible to see these forms of speech [that she incriminates, see above] as either licensing harmful, discriminatory inferences, or as themselves causing harm to vulnerable persons.”
Cudd in effect claims that a certain kind of slur, or things said, or pictures shown in a lecture
Cudd thus faces a dilemma. If she tries to avoid the implication just noted, she will have to deny that inflicting brain damage (or other severe physical or neurological harm) by speech acts like slurs or lectures is unlawful (presumably because such speech is protected by the First Amendment and thus lawful). But then, of course, her case for restriction collapses. If, on the other hand, she insists on the unlawfulness of such acts as well as on her claims about the severe damage such unlawful speech inflicts, she deserves the dubious honor of having licensed “defensive” campus violence on a massive scale.
Moreover, given that Cudd completely misrepresents the psychological literature she relies on, she is not a reliable guide to the psychological harms allegedly produced by speech. In fact, her approach is not so much empirically informed as it is simply dogmatic. This is also demonstrated by her following statement:
Administrators must recognize that minority students and women pay a higher price for free speech than Whites and men, and they need to make explicit statements about that. It is important for minority members to hear an acknowledgment of that fact, and for majority members to understand that they have unearned privileges, and that minority members are providing valuable lessons for them.
Another author intent on restricting speech due to its “harmfulness” is Melina Constantine Bell. There are sections of the article to be discussed here where Bell claims that racial or sexist slurs harm only minorities, or harm them more. She provides no evidence for this claim. There is also a section entitled “Systemic oppression and epistemic injustice.” This section repeats well-worn claims made by Critical Race Theory and by certain feminist theories that posit a “White patriarchy.” It neither provides any evidence to support its claims, nor engages with objections, nor, therefore, advances the debate. I will not deal with these sections.
However, there is also a section that promises to identify the “tangible, concrete harms” that certain forms of speech normally deemed to be protected inflict on “historically marginalized social groups” (independent of whether or not such harms can also befall majorities). The “harms” she refers to “involve ‘experience [that] is severe, prolonged, or constantly repeated’ such that ‘the mental suffering it causes may become ... incapacitating, and therefore harmful’” (mere taking offense does not count for her). Sexist humor … can tangibly and directly harm women by eliciting depression, eating disorders, disruption of focused attention, appearance anxiety, and body shame. … In one study, a group of female participants exposed to sexist comedy skits expressed a greater state of self-objectification compared to women exposed to neutral comedy skits, while male participants’ ratings of self-objectification did not differ based on which skits they viewed. Other experiments found that women engaged in more body surveillance, … [which] can disrupt focused attention, usurping attentional resources and reducing performance on other cognitive tasks. In other research, women performed worse on math tests while wearing swimsuits, relative to a comparison group wearing sweaters. … One study … found that prior experimental “exposure to sexist jokes led to greater tolerance of the supervisor’s sexist behavior [in a vignette on workplace interaction] in comparison to exposure to neutral jokes or comparable non-humorous sexist statements.” Additionally, after watching sexist comedy skits, sexist men demonstrated significantly greater willingness to cut funding for a women’s organization, compared to other types of organizations.
In that context, Bell also interprets one of the studies as showing that “sexist jokes imply that it is acceptable to make demeaning statements about women aloud, reinforcing notions that it is culturally acceptable to regard women as unequal,” and that therefore “women who hear these jokes might internalize their messages and self-objectify rather than rejecting or criticizing the jokes.”
But putting these questions aside—what harm did the studies actually demonstrate? One study answers this as follows: “Our study contributes to this literature by demonstrating that sexist humor can trigger a transitory state of self-objectification in women, which has been shown to have far-reaching and detrimental consequences for women in daily life.”
The same holds for the alleged effects on men’s willingness to “tolerate” sexist behavior. First of all, the “tolerance” refers to the test subjects’ assessment of a supervisor’s sexist behavior
In short, none of the studies Bell refers to show that sexist jokes are more “harmful” than a mother telling her daughter to lay off the cookies and check out the Roberts diet. If the latter kind of speech isn’t harmful enough to warrant restriction, neither is the former.
Bell also claims that “African Americans might be tangibly harmed by racist speech.”
Talking about Mill: using him of all people to argue for further speech restrictions is a rather bold move, but not a successful one. Bell states that “the main public purpose of free speech protections, for Mill, is to safeguard a public space for opinions to be shared, for debate to take place, and for rational and reasonable people to both argue for and amend their positions. Bigoted insults do not deserve protection under this rationale because they cannot reasonably be understood as opinions tendered for consideration and they are not answerable.”
Perhaps Bell thinks the same ideas could be expressed without slurs. But, first, in arguments and debates (let alone in novels or poetry, which can also express ideas) form and content cannot so easily be separated.
Moreover, Bell greatly underestimates the benefits of free speech for “the oppressed” and overrates the importance that “bypassing of rational processing” has for Mill. She states:
Mill recognizes that writing a newspaper opinion that corn merchants are starvers of the poor is an importantly different matter from shouting the same opinion to an angry mob gathered at the merchant’s business or home … [E]xperimental evidence suggests that expressing views such as “women only have value as wives or sexual partners” is significantly less likely to cause harm to women than expressions of comparable views using humor,
Bell is no exception. She says that the view (at least if expressed by a “white man”) that “men are naturally better at mathematics, … or the view that African-American poverty is a consequence of poor work ethic,” articulate “bigoted stereotypes.”
Second, given Bell’s professed concern for “the oppressed,” she is remarkably negligent in appraising the benefits that free speech might have for them. She quickly dismisses the idea that “the civil rights movement depended on the freedom of activists to speak against the status quo,” by stating that the First Amendment “never protected the free speech of enslaved persons.”
Third, and coming back to Mill, he nowhere suggests that what bothers him about someone shouting inciting utterances to an angry mob is that it “bypasses rational processing.” After all, Mill was not only opposed to manslaughter carried out in the highly emotional heat of the moment, but also against rationally calculated cold-blooded murder. Thus, what bothers him about uttering the opinion that corn-dealers are starvers of the poor in front of an angry mob, as opposed to expressing it in a newspaper article, is that the former utterance, in contradistinction to the latter, “
A conspicuous one-sidedness demonstrated by enemies of free speech is that while they constantly go on about the offense given or the harms produced by certain forms of free speech, they virtually never seriously consider the offensiveness and harmfulness of the
To be sure, Bell does admit that “it might be just as important to the white students shouting insults that they are free to do so as it is to the African-American student to avoid those insults.” Yet she quickly assures the reader: “If these hypothetical persons’ interests are equally matched, however, the tie is easily broken by the other important dimension of free speech: the public interest in truth-seeking, equal concern for constituents, and aggregate human happiness. Public values line up squarely against permitting such an utterance in this context.”
First of all, “if these hypothetical persons’ interests are equally matched,” then the tie will necessarily be broken in favor of the majority insulting the minority,
Another blind spot of enemies of free speech when it comes to harms and offense concerns
Consider the scene in George Orwell’s novel
Yet, allegedly, the wrongfulness miraculously disappears—
While enemies of free speech like to constantly take themselves to be detecting all kinds of “offense” given or “harms” produced by free speech, the blurred vision if not blindness regarding the harms and rights-violations involved in suppression of speech and compelled speech is conspicuous. The diagnosis: thoughtlessness or hypocrisy, probably a combination of both. The cure: free speech. It is the medium in which moral integrity and thoughtfulness thrive best.
It is also the tool through which we preserve freedom, the value at the heart of a liberal democracy. In such a system people are, for good reasons, protected against severe
By free speech theory I mean the corpus of philosophical and legal scholarship arguing for free speech protections roughly in line with the First Amendment to the US Constitution.
At least at the time of writing her article; see Ann E. Cudd, “Harassment, Bias, and the Evolving Politics of Free Speech on Campus,”
Ibid.
Nadine Strossen,
The National Association for the Advancement of Colored People (NAACP) field organizer Charles Evers, quoted from ibid., p. 63.
Ibid.
Cudd, “Harassment, Bias, and the Evolving Politics of Free Speech on Campus,” p. 444.
Daniel Jacobson, “Freedom of Speech Acts? A Response to Langton,”
Cudd, “Harassment, Bias, and the Evolving Politics of Free Speech on Campus,” p. 435.
Ibid., p. 436.
Ibid., pp. 436–37. Note Cudd’s concern about groups. Would “individualistic” statements like “You are ugly” also count as hate speech? If not, why not? Maybe the idea is that verbal attacks on a person’s “identity” (understood as membership in some group) are particularly harmful, but that would require some empirical evidence.
Habib Yaribeygi, Yunes Panahi, Hedayat Sahraei, Thomas P. Johnston, and Amirhossein Sahebkar, “The Impact of Stress on Body Function: A Review.”
Lukianoff and Haidt,
Sundari Chetty, Aaron R. Friedman, Kereshmeh Taravosh-Lahn, et al., “Stress and Glucocorticoids Promote Oligodendrogenesis in the Adult Hippocampus,”
Konstantinos Bromis, Maria Calem, Antje A. T. S. Reinders, et al., “Meta-Analysis of 89 Structural MRI Studies in Posttraumatic Stress Disorder and Comparison with Major Depressive Disorder,”
In fact, the idea that the rodent experiments Cudd refers to can be used to explain PTSD in human beings (even if we are talking about
Anne P. DePrince and Jennifer J. Freyd, “The Harm of Trauma: Pathological Fear, Shattered Assumptions, or Betrayal?” in Jeffrey Kauffman (ed.),
Cudd, “Harassment, Bias, and the Evolving Politics of Free Speech on Campus,” p. 436.
Ibid., p. 438.
This is not hypothetical. The violence used to keep Milo Yiannopoulos from speaking at Berkeley was justified as “self-defense” by at least one commentator, as reported by Heather Mac Donald,
I would like to illustrate this point a bit further in the light of recent notorious events, namely the massive harassment of gender-critical feminists like Kathleen Stock, and the threat of actual violence against them. Cudd sees fit to talk about the harms or the “violence” (here she uses quotation marks although she has, as we saw, no basis for doing so given her theory) of “transphobic” speech (Cudd, “Harassment, Bias, and the Evolving Politics of Free Speech on Campus,” p. 432; the latter scare quotes are mine, not hers). In my experience, most who use the term “transphobic” mean by this to refer to any view that conflicts with the claim: “Transwomen are women.” Those who claim that “transphobic speech” is
Ibid., p. 443.
Melina Constantine Bell, “John Stuart Mill’s Harm Principle and Free Speech: Expanding the Notion of Harm,”
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” pp. 169–70. She quotes from Julie A. Woodzicka and Thomas E. Ford, “A Framework for Thinking about the (not-so-funny)
Effects of Sexist Humor,”
Richardson, and Shaun K. Lappi, “Sexist humor as a trigger of state self-objectification in women,”
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” p. 169.
Ford et al., “Sexist humor as a trigger of state self-objectification in women,” p. 266.
Woodzicka and Thomas E. Ford, “A Framework for Thinking about the (not-so-funny)
Effects of Sexist Humor,” pp. 185–86.
Ibid., p. 182.
Ibid.
Ibid., p. 183. Moreover, there is a general problem when it comes to the replication of priming studies, so one should perhaps think twice before drawing far-reaching conclusions from them. See Ed Yong, “Nobel Laureate Challenges Psychologists to Clean Up Their Act,”
In fact, some level of appearance anxiety and body shame might have
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” p. 170.
Ibid.
Ibid., p. 171.
Tené T. Lewis and Miriam E. Van Dyke, “Discrimination and the Health of African Americans: The Potential Importance of Intersectionalities,”
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” p. 171.
It should perhaps also be noted that the whole attempt of avoiding net harm by restricting speech along the lines proposed by Bell (and Cudd, for that matter) seems to presuppose a sociological, psychological, and political infallibility of the censor that Mill deemed to be impossible. See also David Lewis, “Mill and Milquetoast,”
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” p. 174.
Ibid., italics in the original.
For the incorrectness of this idea, see Uwe Steinhoff, “Against Equal Respect and Concern, Equal Rights, and Egalitarian Impartiality”, in Uwe Steinhoff (ed.),
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” p. 174.
Collier, “Hate Speech and the Mind-Body Problem,” pp. 223–34. Note also that in
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” p. 175.
Ibid., p. 170.
Ibid., p. 178.
For some evidence, provided by a black scholar, that the white man may be correct, see Thomas Sowell,
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” p. 177.
Ibid. The quote is from Richard Delgado and Jean Stefancic,
In case you are in doubt as to what this answer might be, you can get an excellent overview in Strossen,
John Stuart Mill,
See on this J. Angelo Corlett, “Offensiphobia,”
Bell, “John Stuart Mill’s Harm Principle and Free Speech,” pp. 175–76.
That is, when they are equally matched in one-to-one cases. However, the marginal value of not being insulted will diminish with the number of insulters. That value also diminishes for the insulter with the number of the insulted, but
Mill’s utilitarianism is about maximizing human happiness. “Upholding values” is only important insofar as it diminishes or produces happiness, that is, it is only important insofar as it is a negative or positive part of the aggregate human happiness.
For a refutation of the “free speech violates equality” topos, see also Weinstein,
Ronald Dworkin, “Foreword,” in Ivan Hare and James Weinstein,
See for example C. Edwin Baker,
I have come across the objection that the two cases are not analogical because it is a necessary truth that two plus two is four while, so the objection goes, there can be a “rational argument” on both sides on whether a “biological male” who wants to be considered a woman can “reasonably request” to be referred to with female pronouns. However, first, that women are adult human females is also a necessary and analytical truth, as dictionaries confirm. Of course, one could decide to
Females are defined with reference to their biological role in reproduction (which is a far cry from
Ray Blanchard, “The Concept of Autogynephilia and the Typology of Male Gender Dysphoria,”
For evidence for this possibility (expressed by autogynephiles themselves), see Lawrence,
You can google this phrase—there will be a lot of hits.
I thank three anonymous reviewers and the editors of the