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Published online by Cambridge University Press: 04 May 2021
Early in the history of liberalism, its most important proponents were concerned with freedom of religion. As polities and individuals now accept a dizzying array of religions, this has receded to the background for most theorists. It nonetheless remains a concern. Freedom of speech is a similar concern and very much in the foreground for theorists looking at the current state of academia. In this essay, I argue that inappropriate limits to freedom of religion and inappropriate limits to freedom of speech—especially in the form of de-platforming on college campuses—both have, as one of their effects, what I call harms of silence. This means we ought not have those limits, so should seek to change them where they exist.
For feedback on drafts of this essay, I am grateful to Teresa Bejan, Bill Edmundson, Khalil Habib, Daniel Jacobson, Adam Kissel, Andrew Koppelman, Thomas Cushman, Patrick Lynch, J. P. Messina, Adam Moore, Christopher Robertson, Frederick Schauer, David Schmidtz, Daniel Shapiro, Bas van der Vossen, Brandon Warmke, Keith Whittington, Joanna Williams, and Ronald Wilson. I am also grateful for funding for this project that was provided by the Institute for Humane Studies and Liberty Fund. Writing the essay was also helped by Disturbed.
1 There is more to be said on this topic as it relates to social media. As Facebook, for example, seeks to limit its use by those on the far right (as of the writing of this essay). One might be concerned about “de-platforming” or uninviting there. I won’t discuss that here. These digital platforms do not seem like central loci of thoughtful free speech that provides a genuine marketplace of ideas, even if some people do use them for such speech. Recent actions by these platforms may nonetheless be—I think, is—still worrying. (Interestingly, we are seeing a variety of new platforms—like heynetwit.co, kialo.com, letter.wiki, and minds.com—that are more promising.)
2 Two immediate complications. First, intentional omissions may count as acts. This may be conceptually curious (see Randolph Clark’s Omissions,[New York: Oxford University Press, 2014]), but is perfectly normal. Acts of toleration, after all, are acts of omission: cases where we intentionally refrain from interfering with another (see my “What Toleration Is,” Ethics 115, [2004]: 68–95). Second, talk of acts by norms may be misleading. What is meant is that norms can influence people, causing them to act in certain ways either because they have internalized the norms or because they know others have. For an example of the first sort, males that have internalized norms of dress in the United States don’t wear skirts. For an example of the second sort, males that have not internalized those norms may refrain from wearing skirts due to fear of being attacked by others who have.
3 This is different from the definition offered by Jennifer Hornsby in her “Disempowered Speech,” Philosophical Topics 23 (1995): 127–47. Hornsby claims, “The silenced person is someone who literally cannot do with speech what she might have wanted to” (138). See also Jennifer Hornsby and Rae Langton “Free Speech and Illocution,” Legal Theory 4 (1998): 21. My argument here has an affinity toward the arguments of thinkers like Langton and Hornsby and others that claim pornography silences women. My argument, though, does not lead to the same conclusions. Those arguments seem to define pornography as necessarily subjugating women—so that a nude dominatrix having sex with a male customer could not count as pornography—and thus not (or not necessarily) silencing of women. When this is recognized, I think the conclusions of the arguments are closer. Nonetheless, I would insist that so long as all participants are consensually involved there is no wrong—and so even if there is silence, it’s not a harm of silence. Mary Kate McGowan may come close to this when she notes that even some oppressive speech acts “would not (and should not) be … legally actionable” (Mary Kate McGowan, “Oppressive Speech,” Australasian Journal of Philosophy 87 [2009]: 400). I would also add that while oppressive speech may cause harms of silence, mislabeling speech as oppressive may also cause harms of silence. In any case, I certainly agree that pornography can contribute to silencing (see Hornsby and Langton, “Free Speech and Illocution,” 28), but contributing to silencing should be distinguished from being an act of silencing. I take no stand on whether freedom of speech is freedom of illocution, as these writers do, or freedom of locution, as Daniel Jacobson does in his “Freedom of Speech Acts? A Response to Langton,” Philosophy and Public Affairs 24 (1995): 64–79. See Hornsby and Langton, “Free Speech and Illocution,” 32ff for persuasive argument. Limiting speech on either understanding can be a harm.
4 Determining what is wrongful and what is not is, of course, a difficult question. I won’t attempt to answer it here.
5 With full silence, obviously, a specific topic may be removed from discussion. But that may not be the case. In a room of cacophonous chatter, it may be that nothing of significance is discussed; it may be that a teacher has no interest in prohibiting discussion of a particular topic but merely an interest in focusing her students.
6 This paragraph is adapted from my “The Harm Principle and Parental Licensing,” Social Theory and Practice 4 (2017): 826–27. In my Toleration and Freedom from Harm (New York: Routledge, 2018), I offer a refined definition such that “to undergo a harm is to be the subject of an event wherein one’s interests are wrongfully set back and wherein the status of the undergoing of the harm derives from its being the sort of event that it is (namely, a wrongful setting back of interests), independently of the badness of any resulting state” (56). The reasons for the complications can be put aside; the simpler Feinbergian (see note 7 below) definition will do.
7 Joel Feinberg argues that this is the way harm is best understood in the harm principle. See, e.g., his Harm to Others (New York: Oxford University Press, 1984), 31–45, the first of the four volumes in his magnum opus, The Moral Limits of the Criminal Law. The definition has been challenged, of course. See footnote 5 in my “The Harm Principal and Parental Licensing.”
8 Some prefer to talk of rights to religion, to speech, and so on. I have no view of the nature of rights. Some argue, of course, that rights are ultimately grounded in the will or respect for people’s choices. Others, of course, argue that rights are grounded in interests—respect for people’s welfare. I think it’s more direct to discuss when people are wronged, whether because they are prohibited from acting on their will or because their welfare is impeded. (In either case they have an interest wrongfully set back). This is why I am most sympathetic to theories of rights that take rights to be a species of normative constraints. For two different accounts I am sympathetic to, see Mack’s, Eric “In Defense of the Jurisdiction Theory of Rights,” Journal of Ethics 4 (2000): 71–98,Google Scholar and George Rainbolt’s The Concept of Rights (Dordrecht: Springer Publishing, 2006).
9 Mill, John Stuart, On Liberty (Indianapolis, IN: Hackett Publishing, 1978 [1859]), 9 Google Scholar.
10 See my Toleration (Malden, MA: Polity Press, 2014) and Toleration and Freedom from Harm for defense. In my Toleration and Freedom from Harm (106), I offer a refined version of the principle but the differences will not matter here. I have an expansive view of how to use the harm principle, but to simplify here I will assume that the principle provides (the only) justification for any interference, where that entails “impeding or preventing— even partially—an agent from doing as they wish, intend, or will. That is, it is hindrance or obstruction” (35). Importantly, if A contractually obligates himself to do P for B, but then wants not to do P, A has bound himself to do P nonetheless and it is not interference to hold him to it. So, for example, students at universities are contractually obligated to abide by the rules of the university; requiring their compliance in doing so will not count as interference any more than requiring renters to pay the rent they owe their landlord.
11 To be clear, harm is a necessary but not a sufficient condition for interference.
12 I don’t mean to deny there might be reason for action based on other grounds. A dangerous intersection, for example, might not result in harms in the technical sense but might nonetheless leave many people being hurt. It would clearly be worth it to those using the intersection to improve it. Similarly, though, I have reason to change the font I work with on my computer if the one I am working with is difficult to read. In neither case is there warrant for interference—that is, no individual needs to be prevented from acting as he wills.
13 I favor endorsing something like the Chicago Statement on free speech, but will not delve into that here. For the Statement, see https://provost.uchicago.edu/sites/default/files/documents/reports/FOECommitteeReport.pdf.
14 Pierre Bayle, A Philosophical Commentary on These Words of the Gospel, Luke 14:23, “Compel Them to Come In, That My House May Be Full,” (Indianapolis, IN: Liberty Fund, 2005 [1688], chap. V, para. 24. In correspondence, Teresa Bejan rightly indicates that John Locke is more tolerant of religious “fanatics” than Bayle—so more accepting of public displays of religiosity. Locke, though, did not extend advocacy of freedom of religion to Muslims, Catholics (“Papists”), or atheists. For the first, see Locke, Letter Concerning Toleration, ed. James Tully (Indianapolis, IN: Hackett Publishing, 1983), 50–51. As Waldron notes, Locke doesn’t specifically name Catholics (see Jeremy Waldron, “Tolerating Athiests” in his God, Locke, and Equality [New York: Cambridge University Press, 2002]: 217–43), but what he says clearly suggests it. For more on the intolerant Locke, see Alex Tuckness’s “Rethinking the Intolerant Locke,” American Journal of Political Science 46, no. 2 (2002): 288–98. See also the newly discovered notes on tolerating Papists; available at http://digitalarchives.sjc.edu/items/show/6528?_ga=2.219652633.1486104775.1567655766-738543759.1566387839.
15 For recent works that discuss Bayle, see Rainer Forst’s Toleration in Conflict (New York: Cambridge University Press, 2013) and Chandran Kukathas’s “Toleration without Limits,” in Religion in Liberal Political Philosophy, ed. Cécile Laborde and Aurélia Bardon (New York: Oxford University Press, 2017), 262–74, as well as his introduction, with John Kilcullen, to Bayle’s Commentary.
16 While the burdening might be akin to libertarian paternalist nudges, it is not clear what the justification would be for encouraging citizens to adopt one religion rather than another. Contemporary economics of religion suggests that competition between religions helps competing religions gain or maintain adherents. See note 22 below.
17 See Cohen, “What Toleration Is.”
18 See Balint, Peter, Respecting Toleration (New York: Oxford University Press, 2017)CrossRefGoogle Scholar, particularly chap. 3. See also Cohen, Toleration and Freedom from Harm, 23–24.
19 This means only that the state refrains from interfering with all, except in cases where the strictly limited principles that indicate when interference is justified do so. The same principles are applied neutrally in all cases. Put differently, the liberal state is neutral in policy, not outcome. (I am not, of course, claiming any existing state is properly neutral, tolerant, or liberal.) If the state tolerates group A’s speech only in private, it should do the same for group B. If it tolerates group A’s speech publicly, it should do the same for B.
20 See Yuval Jobani and Nahshon Perez, Governing the Sacred (New York: Oxford University Press, 2020) for examples of cases where toleration of religious practices (at sacred sites) remains problematic.
23 It is also likely to result in fewer people actively participating in religion in general. See Cohen, Toleration and Freedom from Harm, 70–72 and the work of Iannacone I cite there.
24 Below, I will distinguish between “de-platforming” and “no platforming.”
25 See https://www.insidehighered.com/news/2017/03/03/middlebury-students-shout-down-lecture-charles-murray, and, for one fair account of the violence, see https://www.theatlantic.com/politics/archive/2017/03/middlebury-free-speech-violence/518667/. Video of the actual event is linked there.
26 The students were (mildly) disciplined. See https://www.nytimes.com/2017/05/24/us/middlebury-college-charles-murray-bell-curve.html.
28 For one example, Condoleezza Rice, former Secretary of State, declined to appear at Rutgers University. See https://www.cnn.com/2014/05/04/us/condoleezza-rice-rutgers-protests/. Nothing I say here should be taken to indicate an opposition to student protests. On the contrary, student protests can be a vital part of discourse. When protests turn to violence or shouting down speakers, though, there is a problem.
29 For one example, Suzanne Venker was uninvited to Williams College. See https://www.insidehighered.com/news/2015/10/21/williams-students-revoke-invitation-speaker-who-criticizes-feminism. In cases where invitations are retracted for fear of protest, we have a heckler’s veto. Declined invitations (if declined for fear of protests) are similar. In either case, we have a group (the hecklers) setting back the interests of others (those who wish to hear or speak with the speaker). Absent good reason, this is a harm.
30 I am inclined to think such is always wrongful if the invitation was issued properly (including being vetted by faculty). There can be cases where a student group invites a speaker that they should not have and so the invitation is revoked in order to right the situation—making it such that all speaker invitations are issued appropriately—and where the revocation is done (perhaps with embarrassment and regret) such that it is not wrongful.
31 See my Toleration, 136–40.
32 See my “Psychological Harm and Free Speech on Campus,” Society 54 (2017): 320–25.
33 As I will note, different colleges will have different policies in accord with their mission. (See note 13 above.)
34 What I say here is partly in response to Robert Simpson and Amia Srinivasan, “No Platforming,” in Jennifer Lackey, ed., Academic Freedom (New York: Oxford University Press, 2018). Our views are similar. Where I speak of de-platforming and no-platforming, they use only the latter but recognize that interfering with faculty-approved speakers is an infringement of academic freedom (of the host faculty). They also insist there are sometimes reasons for faculty to consult with students about invitees (and hires). I agree, but this does not alter my main point. When faculty-approved policy rules out non-credible visitors (“no platforming” as I use the term) there is no problem. When speakers are invited in accord with such policy but are de-platformed, we have wrongful interference. (Uninviting speakers is more like de-platforming than no platforming, but I will not delve into that here.)
35 To be clear, I do not advocate a policy where only PhDs are invited to campus. News reporters, politicians, business people, and so forth, are not academically credentialed but may well be correctly thought to have something valuable to say in an academic setting. This should be the decision of faculty.
36 To be clear, I advocate for de jure limits in policy—for reasons that follow in the text. These limits, if carefully set, may provide student groups great latitude, and if those limits are not challenged, those groups may have extensive de facto control over who they invite.
37 See my Toleration, 121–24. For the paradox of toleration, see 111–13.
38 A final concern is worth touching on briefly. Some believe colleges should provide “safe spaces” where students can rest without concern that they will hear (or be asked to discuss) topics they do not wish to hear (or discuss). As I note in my “Psychological Harm and Free Speech on Campus” (324–25), the only place for this on a college campus, in my view, is the student’s own dormitory room. There, students are free to close the door and not allow in anyone they disagree with. This is the students’ home. On my view, though, demanding that one be as safe from debate in the rest of the dormitory is essentially indicating that one wishes not to be in college. Some might agree with this but worry that student groups should be free to form as the participating students wish without allowing dissenters. I am inclined to think this is also a mistake—that so long as the dissent is respectful, it should be allowed. If a group of students does not wish to accept even respectful dissent in their midst, they might meet in one of their dorm rooms or off campus.
39 In his “No Platforming and Higher-Order Evidence, or Anti-Anti-No-Platforming,” (Journal of the American Philosophical Association 5 [2019]: 487–502), Neil Levy makes use of the distinction between first order and second order evidence to argue in favor of some no-platforming, but does not distinguish between no-platforming and de-platforming. I agree with Levy that universities ought not platform everyone, but add that once platformed by the professoriate, a speaker ought not be de-platformed. (Nor should they be uninvited absent extraordinary circumstances related to the claim that their talk provides academic value—for example, where it is clearly shown that the invited speaker plagiarized work or falsified data). See https://aeon.co/ideas/why-no-platforming-is-sometimes-a-justifiable-position for a short version of Levy’s view.
40 I recognize a tension between saying it is the faculty that ought to decide who can be platformed and the fact that faculty members might disagree about that very question. Ideally, a school hires faculty all committed to its clearly stated mission. (And hopefully that mission includes a commitment to open inquiry.) See notes 13 and 33 above.
41 See Jon Shields and Joshua Dunn, Passing on the Right (New York: Oxford University Press, 2016).
42 There are also cases of students seeking to silence their professors. Students at Sarah Lawrence College, for example, want to review—themselves—the tenure of Samuel Abrams, a political science professor there. (See https://www.insidehighered.com/news/2019/03/13/students-sarah-lawrence-want-review-tenure-conservative-professor-who-criticized.) Similarly, students at the University of the Arts want Camille Paglia fired. (See https://www.insidehighered.com/news/2019/04/17/university-arts-rejects-calls-fire-camille-paglia.) This again shows a lack of epistemic humility appropriate to students. Fortunately, these sorts of actions rarely lead to anything. The academy generally recognizes that students are not in a position to make the relevant judgments; this recognition accords with what I’ve said here and should be extended accordingly.
43 I mean to include policies that allow student (or other) de-platforming as well as policies that do not leave platform decisions with faculty.
44 Some might suggest we all have a second order interest in this that ought not be set back.
45 See Rauch, Jonathan, Kindly Inquisitors (Chicago: University of Chicago Press, 2014), e.g., 27 CrossRefGoogle Scholar. In my view, “In the college environment, the real harm is caused when students are not challenged” (Cohen, “Psychological Harm and Free Speech on Campus,” 324).
46 As Frederick Schauer argues in his essay in this volume, it can help contribute to the development of moral agency. This seems especially true on college campuses.