Greg Lukianoff’s answers to common criticisms of free speech

June 1, 2021 • 11:00 am

In this article from Areo, Greg Lukianoff, president of FIRE (the Foundation for Individual Rights in Education), answers some of the criticisms that people on both Left and Right level at those who promote free speech and the First Amendment. It’s short, and you can read it for yourself (click on the screenshot), but I’ll highlight a few items.

A runthrough: speech is not the same thing as violence; free speech implies that words are harmless; the government recognizes limits to free speech (you can’t shout “fire” in a crowded theater if there is none); arguments for free speech are outdated; free speech is the tool of the powerful, not the powerless; free speech applies only to government punishment of expression; hate speech laws reduce intolerance; free speech is a conservative talking point; it’s all right to restrict speech if it promotes civility; restrictions on free speech preserve cultural diversity; and blasphemy should be exempt from free speech.

Lukianoff is an expert in this, and I think his answers are good ones, well worth reading if you’ve encountered some of this before. I want to highlight two points.

1.) Hate speech laws do not reduce intolerance.  This is Lukianoff’s contention, and I’ll reproduce his words and data. Remember that correlation is not causation, so even if areas with hate-speech laws have more hate crimes or incidents than do areas lacking such laws, that does not mean the laws aren’t effective. (Perhaps there would be more incidents if the laws were rescinded.) On the other hand, it shows at least that hate crime laws don’t reduce bigoted attacks below those of nations lacking such laws. The data also also imply that, even if there’s no correlation between the presence of laws and incidence of bigotry, Europe is more rife with bigotry than is North America.


Assertion: Hate speech laws are important for reducing intolerance, even if there may be some examples of abuse.

Answer: Since the widespread passage of hate speech codes in Europe, religious and ethnic intolerance there has gone up. During the same period, ethnic and religious tolerance has improved in the United States.

At least a dozen Western European countries have hate speech laws, many of which run counter to their legal or historical commitments to free speech. But even though those laws have been on the books for years, by most measures Western Europe is less tolerant than the United States.

Western Europe as a whole scores 24% on the antisemitism index, meaning about 24% of the population harbours antisemitic attitudes, even though many of their hate speech laws explicitly prohibit Holocaust denial. In the United States, with no such laws, the antisemitism index is ranked at 10%.

If it were true that hate speech laws reduce intolerance, we would expect to see fewer hate crimes where such laws exist. Yet, in 2019, in the United States, there were 2.61 hate crimes per 100,000 people; in Denmark, there were 8.08 per 100,000 people; in Germany, 10.34; and in the United Kingdom, a whopping 157.67.

The figures for the UK are astonishing to me (61 times higher per capita as in the U.S.!), as is the antisemitism index in Western Europe compared to the U.S.

Lukianoff’s argument continues:

Nor has restricting hate speech prevented the spread of intolerance. In 1986, the UK passed a law against “words or behaviour … likely to stir up racial hatred”; yet, in the 1990s, racial tolerance decreased. Despite having hate speech laws since the 1980s, Germany is experiencing increased islamophobia and antisemitism. France passed its Gayssot Act outlawing Holocaust denial in 1990, yet as recently as 2019 it held a 17% antisemitism index score.

And I don’t just believe that cracking down on hate speech failed to decrease intolerance, I think there is solid grounds to believe that it helped increase it. After all, censorship doesn’t generally change people’s opinions, but it does make them more likely to talk only to those with whom they already agree. And what happens when people only talk to politically similar people? The well documented effect of group/political polarization takes over, and the speaker, who may have moderated her belief when exposed to dissenting opinions, becomes more radicalized in the direction of her hatred, through the power of group polarization.

2.) Free speech, at least in America, doesn’t apply only to the First Amendment. True, the government can’t punish you for what you say, but other people and organizations can.  This is in principle true, but, for all the reasons that we need free speech (Lukianoff goes over Mills’s classic three reasons), it behooves other groups to allow speech as far as they can. This includes social-media organizations like Facebook and Twitter, though of course some private organizations might be damaged by certain types of speech. And private universities, which needn’t adhere to the First Amendment, should still follow the Chicago Principles of Free Expression.

All too often, the widespread promotion of free speech is attacked using the derogatory term “Freeze Peach,” and when I see that I know i’m dealing with a chowderhead. Here’s an xkcd cartoon which expresses the woke “Freeze Peach” attitude, and, as Lukianoff says, it’s “wrong”:

First of all, it implies that people who object to your speech think you’re an “asshole” and are purveying “bullshit”. That’s not necessarily the case, for, as Mill emphasized, you can benefit by listening to your opponents in several ways. It tacitly approves of social media pile-ons as well as deplatforming, and is notably lacking in empathy. (I find that xkcd cartoons often have that hard-nosed attitude.)

Here’s Lukianoff’s response:

Answer: No, the popular xkcd cartoon below is wrong. The First Amendment limits what the government can do, but freedom of speech is something much bigger than that.

This cartoon is often used to dismiss free speech arguments, but it is wrong: it not only confuses First Amendment law with freedom of speech, it doesn’t even get the First Amendment right.

The concept of freedom of speech is a bigger, older and more expansive idea than its particular application in the First Amendment. A belief in the importance of freedom of speech is what inspired the First Amendment; it’s what gave the First Amendment meaning, and what sustains it in the law. But a strong cultural commitment to freedom of speech is what maintains its practice in our institutions—from higher education, to reality TV, to pluralistic democracy itself. Freedom of speech includes small l liberal values that were once expressed in common American idioms like to each his owneveryone’s entitled to their opinion and it’s a free country. These cultural values appear in legal opinions too; as Justice Robert H. Jackson noted in West Virginia State Board of Education v. Barnette, “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

While the United States Constitution limits only governmental behaviour on its face, its application sometimes requires the government to protect you from being censored by other citizens. For example, the government has a duty to protect you from being attacked by a hostile mob that doesn’t like your ideas or having your public speech disrupted by a heckler’s veto.

The First Amendment also bars government officials from punishing your speech in many ways that don’t rise to the level of arresting you. To give just one example, since administrators at state colleges are government actors, they can’t tear your flyer from a public message board because they don’t like what it says.

A belief in free speech means you should be slow to label someone as utterly dismissible for their opinions. Of course you can kick an asshole out of your own house, but that’s very different from kicking a person out of an open society or a public forum. The xkcd cartoon is often used to let people off the hook from practicing the small d democratic value of listening.

The last paragraph, which I’ve put in bold, is absolutely right. (NYT: are you listening?) There’s an increasing tendency to deal with speech you don’t like not by counterarguing, but by deplatforming, dogpiling, or implying that someone (J. K. Rowling is one example) is a bad and hateful person. Like those who go after Rowling, or young-adult authors who are doing their best, or the irredeemable transgressors in the knitting community, this xkcd cartoon lacks empathy. It does have a point, but doesn’t make it very effectively, and, as Lukianoff says, it doesn’t even get the First Amendment right.

h/t: Paul

36 thoughts on “Greg Lukianoff’s answers to common criticisms of free speech

  1. ” For example, the government has a duty to protect you from … having your public speech disrupted by a heckler’s veto.”

    Um… what?

    1. When thinking about the term “heckler’s veto”, I considered it to refer simply to a group of people shouting down a speaker so that she could not continue the talk. Lukianoff links to an article at FIRE by Zach Greenberg, who views the term more expansively. For example, he considers it an act of the heckler’s veto if a university cancels a talk out of fear of violence. He says: “if a governmental actor, such a public university, sides with the heckler by canceling the event or refusing to protect the speaker against use of force, it has failed to uphold the speaker’s free speech rights.” Greenberg’s viewpoint is great in theory, but I fear its implementation is often very difficult in practice.

    2. That line stuck out for me also. If so, I doubt the government knows this. There are situations in which the police or local security will remove a particularly disruptive heckler but, AFAIK, it is not considered a duty. Isn’t it more a matter of an organization having control over who is on their premises? What’s our host’s take?

  2. Some of the questions I struggle with:

    Does protecting the free right to your opinion require a permissive stance with respect to organized disinformation campaigns?

    Does freedom of speech require unlimited access to the public airways?

    Is a deterministic view of behavior compatible with classic free speech?

    1. Regarding organized disinformation campaigns, I think advocates of free speech would argue that yes, they are protected free speech as long as they don’t advocate violence. After all, the “Big Lie” (that Trump actually won the election) is nothing else but an organized disinformation campaign. Counter speech is the purported remedy. In other words, the logic of this argument is that the banning of this speech would be a greater threat to democracy than allowing speech that, in effect, calls for the end of democracy. No matter which side of the argument you take, democracy is placed in peril.

      1. Free speech – even political speech – has limits. Just like every other Amendment right.

        Even public institutions have discretion to not be required to provide a platform to everyone with an opinion. Meanwhile, the assets of the public airwaves, broadband system, and the internet are open to everyone, but that does not mean that all speech should be permissible for all types of broadcast. We don’t allow public access channels to broadcast pornography, for example. Libel is not protected speech. Using the internet to disclose military secrets will land you in jail. As will planning sedition.

        We have had broadcasting standards since the dawn of radio and then television, and programming must conform to a broad standard of being “in the public interest”. And those standards are more stringent when it comes to the broadcast of news, because objective news is critical for a functioning democracy. Broadcasters have obligations to fulfill in order to earn the right to broadcast – in order to fulfill their Charter.

        When Fox News, for example, deliberately broadcasts huge amounts of disinformation as News programming, they are not operating in the public interest. I would argue that is a special case that should be under review by the FCC, and that at stake should be the broadcast Charter of Fox.

        In other words, imho, it is proper that we have a national discussion about whether deliberate disinformation is properly disallowed when it is using public infrastructure.

        1. I would go even further and make lying a crime. Obviously there would have to be some restrictions on what would be considered criminal lying. It seems like we should be able to mount a class action suit against Trump and the GOP’s Big Lie. We have other laws which have misleading people as their basis, such as trademark infringement where customer confusion is an important measure.

          Up until now, our society has counted on truth-telling to be an adequate counter to lying. With social media, the 24-hour news cycle, and conspiracy based news networks, this is no longer enough. There has to be a price to pay for telling a big enough lie.

          1. I would go even further and make lying a crime.

            Lying, in terms of misrepresenting a material fact, constitutes a crime if done under oath or if the misrepresentation is made to a federal officer in the course of the execution of his or her official duties. See 18 USC section 1001. Lying to a spouse about having worked late at the office is not.

            Criminalizing lying more generally would open a helluva can of worms.

            1. Sure but a can worth opening, IMHO. Obviously, lying to one’s spouse about working late would not be included. I’m looking for something analogous to the Dominion Voting System lawsuits but damages and compensation don’t have to be monetary and the plaintiffs don’t have to be corporations. I’m thinking of a criminal offense we might call Grand Deception (aka Big Lie).

              1. “Obviously, ….. would not be included” is not easily accomplished. The implication of your proposal is that someone would have to set up a final arbiter of what is truth and what is a lie. Almost certainly, those appointed would be people with the normal human range of prejudices and biases, even if unintentional.
                Any time an opportunity arises to actually criminalize opposition to certain viewpoints, there is going to be a big incentive for groups to become those arbiters, or at least be able to influence their judgements.
                It would absolutely end any sort of free speech. Many people are fine with that, but usually assume that the speech of their opponents will be what gets banned.

                I have lived in places where similar policies were in place, and they were of course used almost exclusively by those in power to suppress dissent.

              2. We have courts that hear evidence and decide questions. How is determining a lie any different? It would not end free speech as clearly having an opinion must not be made illegal.

    2. My answers (which are mine alone…)
      1. Yes. Think about it this way: pretend your worst adversary, the guy who hates your point of view and actively wants to censor it, gets to define what counts as “an organized disinformation campaign”. Does that make it clear why freedom of speech must include such?

      2. No, because the government can put reasonable time/manner/place limitations on speech, and frequencies are a limited public resource.

      3. Yes, because “a deterministic view of behavior” is compatible with pretty much any public policy (note I differ from our host on that).

      1. 1) I understand your example but I am more concerned with the ongoing erosion of the place of objective (definable) truth in public policy. We have completely replaced finding the truth with adversarial argument.

        2) I agree

        3) An interesting argument. I can’t completely disagree with you. My argument is that our legal freedoms were defined by enlightenment era pols and depend upon classical free will for their authority. They depend upon a rational model of thought that most here do not support. Some think that determinism makes it imperative to eliminate capital punishment, but can it not also be argued that modern organized disinformation campaigns exploit deterministic weaknesses and skew a form of government that, again, requires classical free will to work? Don’t we need to go all in or all out about the ramifications of determinism?

        1. We have completely replaced finding the truth with adversarial argument.

          The U.S. and several other countries are certainly experiencing a higher amount of political polarization than we have since, say, Gingrich in the ’90s. But I absolutely do not think the solution is to take a concept like ‘disinformation’ and let the government censor it, because, as I implied, lots of those polarized people are IN the government, control it, and will apply the ‘disinformation’ label to different things. Let’s say we have an Agency who is given the revised 1st amendment job to censor disinformation. Sound good? Now let’s say Trump gets reelected and gets to appoint who runs it and what things to censor. Does that still sound good?

          1. what sounds good to me would be an organized effort to understand if a modern understanding of neuroscience should trigger any re-evaluations of our systems of government. I don’t believe that the status quo is a viable option.

  3. You really must stop putting temptation in my way!! Greg’s article is part of a ‘free speech fortnight’ special of Areo, with contributions from people like Massimo Pigliucci (!), Lukianoff, A.C. Grayling, Ayaan Hirsi Ali…and yours truly. I started off the special issue with an essay on Rushdie, Hitchens, and the defence of free speech. I’ll refrain from posting the link (I must preserve some dignity) but if you scroll down the Areo homepage you’ll hit it eventually ;).

  4. If it were true that hate speech laws reduce intolerance, we would expect to see fewer hate crimes where such laws exist.

    A moment’s thought should have told the author that this is utterly wrong headed. To take the extreme, a country with no hate crime laws is going to record no hate crime. The more hate crime laws a country has got, the more recorded hate crime we would expect to see.

    Yet, in 2019, in the United States, there were 2.61 hate crimes per 100,000 people; in Denmark, there were 8.08 per 100,000 people; in Germany, 10.34; and in the United Kingdom, a whopping 157.67.

    Yes, I would suspect differences in recording crime to account for that – it’s so high. The UK’s antisemitism index is almost the same as that of the USA, but, of course, not all hate crime is against Jews. I would expect most hate crime in the UK to be against Muslims or black people.

      1. I think we might find the answer here: This defines hate crime as ‘any criminal offence which is perceived, by the victim or any other person, to be motivated by hostility or prejudice towards someone based on a personal characteristic.’

        This extremely broad definition is coming in for considerable criticism, and quite right too. Many so-called ‘hate crimes’ recorded by the police never come anywhere near the legal process, but the very fact that someone has made a complaint can do real damage to the alleged perpetrator’s life and career. Bottom line: the stats ain’t what they seem.

    1. Umm. . . I don’t agree with you completely, though you do have a point. The fact is that if hate crime laws really act as a deterrent, they should reduce hate crimes in the long run. And they don’t.

      1. Can we conclude that they don’t work, based on Europe? Europe, after all, started with a much higher baseline of religious racism than the US. A large proportion of the population of Germany were members of the Nazi party at the end of WWII. That the Nazi party is not in control of Germany today might be attributable in some part to the fact that German society took it upon themselves to change their culture through the use of hate speech restriction and the accompanying opprobrium for Nazi precepts those restrictions engendered.

    2. What you don’t measure, you can’t know. So I agree, comparing countries that record hate crimes with those that don’t is unworkable. Do people over-report hate crimes where they do exist and could get someone in trouble? (A comparison might be drawn with the use of blasphemy laws in Pakistan to pursue personal disputes.) On the other hand, presumably only a few will report a hate crime knowing that there is no underlying prohibition – should those instances when they do so count for more? It’s impossible to know or judge, I suspect.

    3. You beat me to it, that leapt out at me as well as being an utterly ridiculous statement.

      If more things are defined as hate crimes then of course more hate crimes will be recorded.

      If anything, reported racism in different countries may well be inversely correlated with the true extent of racism in them. Only countries with a strong streak of anti-racism will report racism. In the most racist places nobody reports it as its just normal.

  5. In addition to all of that, it is abundantly clear that there are widespread attempts to not only stifle speech (be “shown the door”, as it were) but also to do harm in the form of endless and pervasive harassment, threats, and attempts to destroy your livelihood. Be shown the door my *ss! Now I’m not aggrieved over that happening to the occasional white supremacist or mens’ rights activist (although I should be). But the Twitter mobs regularly go after anybody who steps out of bounds, even in a very minor way, or is declared to have done so.
    That is what gets ‘m goat. The woke describe what they do as only going after the worst of the worst. But they are just as much about cancelling a young adult fiction writer for the temerity of using a person of color as their main character. Or expelling a college kid for wearing a sombrero at a Halloween party. The Woke never acknowledge this, but it’s true.

    1. Which young adult fiction writer are you and PCC(E) referring to? I’m not consciously aware of this, but both of you mentioning it makes me want to look into and perhaps purchase this person’s book.

      1. JK Rowling, as mentioned by PCC(E). She has made some comments about the rights of people whose description has become such a contested issue that I feel obliged to defer to Aretha Franklin’s usage. Though a cis-gendered white heterosexual male of my age quoting a black woman is probably unacceptable anyway.

        1. Oh, I thought there might be someone else, because it seemed like he was referring to two different people. I already have Rowling’s books, in more than one form, so I guess that’s my part done.

        2. Apologies if I misinterpreted this – I missed any reference to Young Adult authors in Greg Lukianoff’s article, but I seem to be failing even more than usual today. Had my second Covid-19 shot this morning, so I’m blaming that… (No, seriously of course I’m not!)

Leave a Reply