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The paradox of free speech.

The following is an article by Todd C. Ream published in The Hedgehog Review on May 5, 2023.

Any search for recent titles celebrating the university’s mission, achievements, and irreplaceable role will likely end in frustration. There is no shortage of books on the university, of course, but they invariably pronounce “decline,” “demise,” and even “death.” Critics from the political left and right heap scorn on the university in equal volume and intensity, and they tend to agree on one thing: The demise of free speech has left the university in critical condition.

One might think Dennis Baron, one of today’s most courageous commentators on language, would seek safer ground on which to spend his retirement, in part because he’s covered this territory before. Baron’s rise as a noted commentator on language came with his 1986 book, Grammar and Gender, as well as his 1990 follow-up The English-Only Question: An Official Language for Americans? Two years into retirement, Baron sailed into debates concerning the self-selection of gender with What’s Your Pronoun? Beyond He & She.

With his latest book You Can’t Always Say What You Want, Baron demonstrates what any reasonable student of history will conclude: an absolute right to free speech, the right to say whatever you want, never existed. Stated more plainly, terms and conditions apply when exercising free speech. Such an effort alone makes for a valued contribution to a culture drowning in justifications for free speech as ignorant as they are belligerent.

Baron’s book is at its best when the focus is squarely and solely on the practice of free speech. While thematically organized, the chapters provide the needed details in chronological outlines. Five of the eight chapters defining Baron’s book make it an apt choice for readers committed to understanding the points at which free speech is far from an absolute right. The only topic which arguably fits within the scope of Baron’s study but fails to gain a presence is defamation, a topic “with important connections to the freedom of speech and of the press” but, Baron contends, is “too varied and complex to be treated here.”

The topics he treats in depth include the exercise of free speech in relation to seditious speech, obscene speech, threatening speech, English as a national language, and compelled speech. On one level, the details Baron marshals when offering these examples merit the attention of potential readers. On another level, Baron employs these details well when making his larger argument that the language defining the law is always subject to revision.

For readers seeking surety about the state of the law when it comes to free speech, Baron only makes one point with resolve—“Free speech is never absolute.” That conviction does not make Baron susceptible to relativism or cynicism about such a crucial right. Originalists place their faith in the belief that the intentions of the framers of the Constitution prove knowable and, in turn, authoritative. In contrast, Baron places his faith in the courts to interpret the Constitution and the willingness of people of good faith to live within the scope of such interpretations.

Although 30 years have passed since the publication of Stanley Fish’s book, There’s No Such Thing as Free Speech: And That’s a Good Thing (1993), the book covers some of the same ground as Baron’s. Fish would likely agree with Baron’s argument that the stability of law does not rest on words “but on the willingness of society to be bound by law, to accept legal interpretation, [and] to acknowledge the need to challenge an interpretation from time to time.” The law itself provides a means by which agreement and disagreement are forged. While a more nebulous source of faith than originalists might prefer, Baron and Fish invite readers to invest their faith in the abilities of the courts and the citizens whose interests the courts represent when interpreting the law.

What about when it comes to coercion and speech? Baron writes about compelled speech, seditious speech, obscene speech, and threatening speech—and in each case he is both informative and essential. Baron opens chapter seven by acknowledging “The First Amendment prevents the government from interfering with your right to speak, with some exceptions.” He goes on, however, to offer an important reminder that the First Amendment “also stops the government from compelling you to speak, though here, too, terms and conditions apply.” This chapter includes a discussion of the oath of office taken by US presidents as well as a brief discussion concerning the intersection of the law with efforts by various dictionary editors to ascribe meaning to words. But Baron goes on to draw our attention to the practice commonly referred to as the Miranda warning emanating from the 1966 Supreme Court decision in Miranda v. Arizona.

Most adults can quote a portion of Miranda as a result of watching any number of popular crime shows: You have the right to remain silent and the right to speak to an attorney. What is less well known is that there are “at least 560 other variations on the right to silence and to counsel used at the federal, state, and local levels in the United States.” Baron’s point is understanding those rights—especially when being taken into custody—something that often proves more difficult than being able to recite the dialogue from the latest episode of Law and Order.

Baron’s book is at its weakest, however, when he draws connections between the practice of First and Second Amendment rights. In chapter one, for example, Baron introduces the plausible view that “when there is a showdown between the First and Second Amendments, the people with the guns tend to silence those who are unarmed.” He fails, however, on two counts: He does not grapple fully the epidemic of gun violence, nor does he consider the ultimate purpose of free speech. Baron contends that “the possession of legal firearms threatens to silence someone’s legally protected free speech.” He understandably appeals to tragic events such as the Unite the Right protest in Charlottesville, Virginia, in 2017, the occupation of the Michigan State Capitol in 2020, and the storming of the United States Capitol Building in 2021.

The reckless exercise of gun rights, to be sure, suppresses the ability of others to speak freely. If we want to understand the relationship between speech and gun rights, however, we have to give attention to the end or ultimate goal toward which free speech should be practiced. The health of interpretative communities such as courts and circles of civil society depend on appreciation for why free speech is valued. Absent such discussions, Baron acknowledges “there is an ever-shifting line between protected speech and unprotected speech, obscene speech, and threatening speech which can leave speakers at a loss to know when they’ve crossed that line.” Grappling with the good in exercising free speech would remind readers the value in such an exercise is greater than the impish behavior of running up against that line if for no other reason than they can.

The crisis the university faces might be diagnosed as a failure of faculty members and administrators to articulate why free speech is critical to the pursuit of truth. As a community populated by finite beings, the university inherently embraces the risk of falling into error. Fortunately, virtues such as charity and courage, to name only two, not only make that risk tolerable but also necessary. Activities occurring in spaces such as laboratories, seminar rooms, and recital halls might be ordered toward an ultimate goal and greatest potential.

Defining the difference between what one needs to say and what one wants to say would allow Baron to develop more fully the paradox of free speech and move us toward the common good in and beyond the university. Sometimes doing too much leaves one with the reality one has done too little or, perhaps in Baron’s case, perhaps still has more to do.