What exactly does the right of “free speech” apply to?
This is a problem with a long history, but it became acute in 1967 with the wave of student demonstrations against Dow Co. and other CIA recruiters on campus. Militant anti-war demonstrations demanded that the administrations cease to provide Dow recruiters with special university facilities. The administrations replied: This would be a violation of their right to free speech; they must be accorded the same rights that you yourself demand for your anti-war agitation.
In the face of this line, leftish opinion fragmented in three different directions:
(1) Many liberals and social-democratic types fell on their face before the administration gambit; they echoed the view that the demonstrations violated the Dow recruiters’ “right of free speech” and were therefore bad.
(2) Many radicals and student militants agreed with the administration contention (that the demonstrations violated Dow’s free speech), but concluded that it was a good thing to violate the right to free speech in such a good cause.
(3) The third position denied that the right to free speech applied to the Dow case, and took both a principled position for the right to free speech and made a militant defense of the anti-Dow demonstrations.
It was No. 2 that was the disconcerting development in this situation. There was no surprise in finding that the same liberals and social-democrats who regularly argued that any militant anti-war action was sinister, should crank out arguments proving that the anti-Dow demonstrations were the work of the devil. But it was another thing when people who had associated themselves with the various “free speech” struggles around the country, now gave support to arguments which effectively dumped the right to free speech altogether. For this was and is the consequence of position No. 2. However put, this position boiled down to the “hierarchy of values” proposition: In our hierarchy of values, free speech is only one rung; stopping the war’s barbarism is a higher value; therefore the right to free speech must give way before this value.
This line of reasoning does not dump the right to free speech simply for certain cases; it dumps free speech as a right altogether. It reduces it to something you tolerate if there isn’t any “higher value” around to negate it at the moment. Moreover, by introducing the need for an ad hoc judgment in each case about the given “hierarchy of values”, it also introduces the judge who is to make this decision naturally in accordance with his own values. There is no despot or authoritarian who could not accept such a theory of “free speech” with enthusiasm and also with justice. Dictators usually repress only those exercises of “free speech” which do in fact conflict with “higher values” which they hold.
This kind of three-way division is not new: something like it has been seen in radical circles for a few hundred years, long before Dow invented napalm. Within movements of social dissent, there has always been a strong or dominant wing of reformists and reformers, on the one hand; and, on the other, there have also been the elitist and dictatorial currents of radicalism or “revolutionism,” more or less openly anti-democratic, often reflecting the aspirations of alienated intellectuals for a “dictatorship of the intelligentsia” which would permit them to impose their own “hierarchy of values” on the society they detested. Both of these have been quite distinct from the third current of revolutionary socialism-from-below.
It is quite true, then, that radicals and socialists (if we include all kinds) have never been united in support of a consistent advocacy of free speech. It is not strange that this situation is duplicated in the milieu of the contemporary New Left, where so many of the oldest and most outlived ideas of radicalism have been prolifically reinvented.
Let us try to think our way through this question.
We begin with a consideration which certainly must be granted from anyone’s standpoint: it concerns the type of social situation where the right to free speech is involved not where it is valid or invalid, but simply where it is involved or not. The question of free speech comes alive in the context of social struggles and only juridical cretins can believe that all social struggles are resolvable by any kind of speech, free or otherwise. In the last analysis, the more basic social struggles are not decided by government rules or in the courts, but by the contest of power.
The obvious case in point is a revolution, which entails an open contest for state power. The Declaration of Independence was not an exercise of the right to free speech: it was a declaration of intent to engage in a contest of power which pre-empted the field of any norms of civil peace (free speech included). It represented an appeal not to speech (democratic norms, persuasion, etc.) but to the arbitrament of force. Likewise the Russian Revolution, the German Revolution, and any other revolution. You should not claim that it is the “right to free speech” which permits you to marshal the Red Militia to seize the White House; the troops would die laughing.
This does not mean that there is no question of democracy involved in a revolutionary struggle or any other contest of power. Democracy is a wider concept than free speech. Your “right to make a revolution” this moral right, or political right, or whatever you consider it still demands justification and defense in terms of democratic sanctions. But this is a much bigger frame than the “free speech” question. Also: this does not mean that, once the situation has become a contest of power, there is no longer any question of free speech on your own side of the lines, within your own camp. There most certainly is. But the free-speech issue is no longer an issue as between the two sides that have broken out of the framework of civil peace.
Revolution is only the most obvious sort of case where one may decide to leave one ground and go over to another: that is, leave the ground of “free speech” and go over to the ground of the open contest of power. Of course, war is another obvious case, revolutions being only civil wars in end-form. Frenchmen who elected to help the Allied side instead of the legal Vichy government were not making a decision to which “free speech” is relevant; they were merely choosing sides in a war. In the Cold War, likewise, if you want to give American or British military secrets to the Russians, that has nothing to do with any “rights” but solely with the choosing up of sides in a contest of power.
Even in more “normal” times, there are situations, temporary and usually localized, where a group of people may decide to leave the ground of civil norms like free speech and go over to the other ground. Naturally, they must also be prepared to face the consequences. Strike struggles are always, to a small or great degree, contests of naked social power, even where there are legal forms devised to channelize and mitigate the power-confrontation. This element in a strike can produce situations very like civil war. Again we must point out, this does not mean that democratic considerations become irrelevant not a bit; there is always the question of who are seeking power over whom, and for what social ends.
There are other types of situations outside the ground of free speech. There is the situation where the framework of civil liberties is denied by the authorities, as in the life of Negroes in the South or Northern ghettos, or by the sheriff’s deputies in Delano, where direct action is taken outside the cadre of any speech. If an army unit mutinies, it is not a question of free speech. A civil-disobedience demonstration is also not an issue of free speech: the democratic function and justification for civil disobedience lie on another ground, which has been often explained.
In all these cases, it is never a matter of deciding whether the right of free speech is “negated” by some “higher value”, or of dressing a list of values in a “hierarchy of values,” but simply a matter of passing from one ground to a different ground, from the ground of the norms of civil peace to the ground of an open contest of power. You always face the need, of course, to justify your decision to pass from one ground to the other. You may decide to do so rightly or wrongly, democratically or not; and that decision can also be judged wise or not; but all we are concerned with here is that these situations fall outside the question of free speech.
Our subject, free speech, is an issue of the first ground, when it is a contest of views, within the framework of the existing power relations, on the basis of the existing state. With relation to such a contest of views, what do you demand of, or propose to, the governmental power?
At this point in the analysis, we may be told, by some sophisticated radicals who have heard of different kinds of states: “Hold on! What state are you talking about? Their state or ours?” if the objector styles himself a Marxist, he will say: “Are you talking about a bourgeois state or a socialist state?” or its equivalent in current New Left jargon.
There is indeed an opinion, held implicitly or explicitly, which goes like this: As long as we (the good guys) are not in power, we demand free speech and other such liberties and we deserve them, because we are right. But wait till we get power: we are not going to be so foolish as to let you, who are wrong, make trouble and corrupt the People ...
This is not a caricature. It has been put into print by Herbert Marcuse (though not by many other sane people); I have heard it, without searching too hard, from many a young would-be radical; and of course anyone who is not naive knows that it is the unwritten program of any of the Communist Parties.
This is a view very proper to an intelligentsia aspiring to a new ruling-class dictatorship of their own; but it is alien to revolutionary Marxism. Here is a proposition: There can be no contradiction, no gulf in principle, between what we demand of this existing state, and what we propose for the society we want to replace it, a free society.
Naturally, circumstances alter cases, but since this generality applies on both sides, it cancels out and does not affect the proposition. You can legitimately consider the proposition from a moral standpoint that is, as a moral imperative but here I am interested not in moralizing but in political analysis. Why this proposition?
First of all: what we demand of this state now does constitute our real program. Secondly: the kind of movement we build now, on a certain basis, will determine our new society, not good intentions. One can, of course, build a movement on the basis of social demagogy, massive hypocrisy, concealment of real intentions as the fascists did, as the Stalinists do but such a movement is fitted only to install a new despotism. No movement that really aims at a free society can proceed along these lines.
It is a platitude that the right to free speech always means free speech for the fellow who disagrees, including free speech for views that you detest. Otherwise you are not talking about a right but only about what you are willing to tolerate, what you are willing to grant. We are concerned here about political rights: otherwise we are not talking about free speech at all. It is in this connection that we can use some background history on this issue.
As mentioned, this is not a new question. And the theory of the “hierarchy of values” is not a new theory. It played a very big role in this country just the day before yesterday, that is, in the era of McCarthyism of the fifties. It is widely known how ignominiously the liberals and social-democratic types collapsed before the onslaught of McCarthyism; but it is less widely understood that this collapse was not merely the result of unfortunate personal characteristics (like the existence of a vacuum where their guts should have been). There was an ideology about democratic rights that was involved a line of justification. It was, in fact, nothing less than this so-very-new idea of the “hierarchy of values.” Sidney Hook, the arch-ideologist of the capitulation to McCarthy, explained in detail (and perfectly sincerely) that he was enthusiastically for free speech, but not for every exercise of free speech when Freedom itself was threatened by indiscriminate free speech. This meant that Communists, who wanted to use free speech and other democratic rights to destroy freedom and democracy itself, could not be permitted to exercise such democratic rights. Therefore Communists could be deprived of free speech and civil liberties without impugning the “higher value” of Liberty itself. This was the basis of the liberal apologia for the witch hunt system.
This system of thought does not become a whit better when the “higher value” is taken to be something different from “democracy itself” or any other particular formulation; it is not a whit better when the “higher value” is taken to be opposition to the Vietnam war. For the methodology of the witchhunters could be combated successfully only if the argument revolved not around whether your “value” was “higher” than mine, but around the method itself, which had to be rejected at the root.
Before getting back to the method itself, however, let us fill out the picture with another version of the same problem. For the liberals capitulating before McCarthyism commonly justified themselves with another gimmick which also had a strong hold on radicals. This was the issue of “civil liberties for fascists.” Not that this was the burning issue of the fifties! It had, however, been rife in the preceding two decades, and therefore acted as a methodological model.
Most radical thinking had been set in a mold shaped by an image of what had happened in the Germany of the Weimar republic: “See, Weimar Germany let the Nazis enjoy the benefits of free speech and democratic rights and look what happened! The lesson is that a virile democracy has to crack down on totalitarians before they become a clear and present danger, not afterward when it is too late.”
The yellow liberals made liberal use of this mind-set and of this historical model, aiming it at the “Communist menace”; and the Cold War witchhunt deepened from the late forties to the middle fifties. All this was not the invention of Joe McCarthy; McCarthyism merely took advantage of it.
Here is a political exercise for the reader on this very question:
In 1949, when the witchhunt climate was deepening under President Truman, the Supreme Court took up the Terminiello case. Terminiello was a man who had made a speech in Chicago that had infuriated a good part of the audience by its unpopular views. So angry did they become that turmoil ensued, and the upshot was that the speaker was arrested for contributing to the situation (by the unpopularity of his opinions). In short, he was arrested because his opinions were so unpopular that hearers resorted to violence.
The Supreme Court decision, written by Justice William O. Douglas, supported his right to express his views. Douglas laid it down that...
“a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger ...”
The case against Terminiello was thrown out, as a violation of the “clear and present danger” rule. Was this good or bad?
We must now add that this Terminiello was a fascist (a follower of G.L.K. Smith), and the unpopular sentiments which he had expressed in his speech had been anti-semitic sentiments. Now was the Supreme Court decision good or bad?
If Terminiello had to be thrown in jail for saying derogatory things about Jews, what would that mean for the right of other people, in other situations, to express derogatory opinions about other things or people? Did Communists have a right to make speeches expressing sentiments fully as objectionable as Terminiello’s for example, defending concentration camps?
The fact is that the Terminiello decision was a blow against the witchhunt, and this role is not gainsaid by the unsavory character of the individual involved; any more than the civil-libertarian character of certain more recent Supreme Court decisions on the rights of criminals and the restriction of police methods is gainsaid by the fact that the individual cases did involve criminal individuals with no claim on our own sympathy. Another fact is that it was and is not possible to distinguish, as far as the civil-liberties principle is concerned, between cases of “civil liberties for fascists” and “civil liberties for Communists.”
Here are five conceptions on this question which need emphasis:
(1) Take the above-mentioned historical analogy with the Nazis in Weimar Germany: it is wholly false. It is simply not true that the truly scandalous behavior of the courts in Weimar Germany revolved around “free speech for Nazis” cases. The judges of this very democratic republic were letting Nazi thugs go scotfree even in cases where they had been caught redhanded in murder, assault, beatings of Jews and radicals, breaking up of trade union headquarters, and similar actions. Action, not speech. If the Nazi movement had confined itself to speeches (including fascist speeches), it would never have been the danger it was. No rights to free speech had to be curtailed by a millimeter in order to have an abundance of grounds for rounding up the entire Nazi leadership years before they became even a clear and present danger. And this was not an accidental fact but inherent in the nature of the fascist movement as such: this movement never made the slightest pretext of depending on persuasion or education for power. The argument that “history tells us” that fascists have to be thrown in the pokey as soon as they express any opinions considered fascist this argument is a phoney. In fact, just as phoney as the analogous argument of the witchhunters that the expression of Communist views must be met with policemen’s clubs lest “democracy itself” be endangered.
Actions, not speech: this is the key. In contemporary America, for example, socialists are for laws making racist acts a criminal offense. If a landlord discriminates against blacks, browns, yellows, or bearded whites in renting or selling, a real democracy would crack down on him with the forces of law and order; but this has nothing to do with illegalizing his right to express any stupid or reactionary opinions on any group. (Any more than I would want to be restricted in my right to express my own opinions on the subject of Southern rednecks, liberal suburbanites, Democratic politicians, middle-class Negro businessmen, Jewish shopkeepers in Harlem, and an extensive spectrum of other types.)
(2) Of all the juridical weapons we cannot entrust to a state machine that is not ours, the worst is the right to be selective about democratic rights. Because the state will make that weapon a double-edged one; and the sharp cutting edge will be sued against the people, not against the fascists, in the long run if not the short.
Precisely if and when the state is a bourgeois state, we cannot give it our approbation in abandoning the ground of free speech; and if it is really a socialist state we do not have to. But the practical proposals we hear have to do with the former, of course. Precisely in such cases we have to stress: we do not trust this state. We do not trust it in general, and above all we cannot trust it to wield such a weapon.
(3) Although we have been using the usual phrase “civil liberties for fascists” and “civil liberties for Communists,” the formulation is inaccurate. I am not interested in civil liberties for fascists or Communists. It is not their civil liberties we are concerned about; for it is certainly true that they want free speech only to help install a regime that will gag us. If this were really the issue, then there could be no two ways about it. But it is not the issue. The issue of the civil liberties of fascists and Communists is not separable from the issue of civil liberties of everybody else. It is a question of allowing no such distinctions by this state we do not trust.
In a reverse sort of way, the Communist Party found this out when it gleefully urged the government to use the reactionary Smith Act to put Trotskyists in jail, and hailed that wartime witchhunt as a triumph for progress; only to complain bitterly when, later, the ungrateful government used this same triumph for progress to put them in jail, with exactly the same right. If politics were a matter only of morality or sentiment, one might only have said “Serves them right” of the Smith Act jailings of the Communist bravos who had applauded the Smith Act jailings of Trotskyists. But there is no reason for a genuine revolutionary to fall into this snake-pit. Independent Socialists campaigned against the Smith Act persecutions of the Communist Party for the sake of maintaining the rights of radical dissent in America, not for the sake of the Communist Party.
(5) Nor can we rely on this state to defend us against aspiring fascist demagogues. And is it not the height of folly to tear down the structure of what civil liberties we have, in order to encourage such an illusion? Yet this is exactly what is done when the state is asked to impugn its own free-speech standards by denying them to anyone.
The case in point that first impressed me involved, as it happens, the same G.L.K. Smith who inspired Terminiello. In 1945 fascist Smith decided to invade Los Angeles with a campaign to build his movement, and started making speeches. As organizer of our Independent Socialist movement there, I tried to get a united front going of radical organizations (and others) to organize a mass picket line against Smith. Not one could be gotten to do so, either together with us or separately not the Communist Party, not the Socialist Workers party, nor any other. (The reasons given were the time-honored ones, such as: don’t pay any attention to Smith and he’ll go away, etc.) So the first picket lines against the Smith operation were organized by ourselves alone. Simultaneously, another issue arose: Smith wanted to hold a meeting in a school, and the same people who refused to participate in an action against Smith went to the Board of Education to demand that it refuse the use of the school to him. This could only be done by relying on the same ordinances that had been invented in the first place in order to deny school use to socialists and radicals!
Here was the counterposition: we were the only ones to initiate and launch militant mass action against Smith’s meetings, but we refused to ask the government to dump what there was of free speech facilities in order to get at Smith. We organized people’s action, but we refused to put this double-edged weapon in the hands of the government with our approbation.
(5) On this whole business, there is a fundamental difference between the reactionaries and ruling classes in general, on the one hand, and, on the other, us who are fighting for a socialist democracy.
Our aim by its very nature requires the mobilization of conscious masses. Without such conscious masses, our goal is impossible. Therefore we need the fullest democracy.
Their aim requires the straitjacketing or tranquilizing of anything like mass involvement from below. Therefore they must always want to negate or dilute or abolish democratic controls from below.
We, because of the nature of our goals, have no fear of the unlimited unleashing of democratic initiatives and drives. They, on the contrary, must always be wary of it, even when they seek to manipulate it.
And by “they” I mean not only the present ruling elites but also various aspiring elites, like the elitist intelligentsia or bureaucrats who would like to be benevolent despots in place of the capitalists.
Now we can return to the recent issue of the anti-Dow demonstrations. Was it necessary to dump the right to free speech in order to defend the anti-Dow demonstrations? I think this is nonsense, and the case against it is almost an open-and-shut one. Here are a number of considerations:
(1) The Dow recruiters did not even pretend to be coming on campus in order to present any views, opinions, or speech whatsoever. We should welcome the opportunity if they asked for university facilities to present argumentation and discussion defending what they are doing by organizing a forum, or setting up a table to distribute their statements, or what have you. That is a question of free speech.
(2) The Dow representatives were using special facilities provided by the university not to present their opinions on the use of napalm, but to carry on their company business. That’s all!
(3) Many universities for example, at Berkeley withdraw this privilege from companies that discriminate racially or recruit strikebreakers. Is this is a violation of the right to free speech by racist companies? The apologists cannot have it both ways. If Dow’s right to use university facilities for company business lies in the ground of free speech, then these other cases lies in the ground of free speech too. Or suppose a university adopted the policy of allowing no private firm or corporation to use its premises and facilities for any company business including recruiting: this still leaves them the full possibility of setting up a headquarters near campus and advertising their presence as usual, and changes very little for them. But whatever one thinks of the desirability of such an overall policy, would it mean that the university had abolished “free speech” for corporations on campus? I do not think anyone would even claim that. The practice of allowing company recruiters on campus is defensible as a convenience for the students, but not as a right for the company.
By the way, if Dow’s right to use special university facilities for recruitment of employees is a matter of free speech, then this would be so also if the Communist Party asked for special university facilities to recruit its organizers. It would be interesting to see how many universities would give the Communists this same treatment, and also how many of the liberals, who now defend Dow’s “free speech,” would demand such equal treatment ...
The point of arguing this liberal nonsense is only to show that defense of the anti-Dow demonstrations sets up no earthly reason to dump free speech principles unless one has other ideological motives for doing so.
But we know, as a matter of fact, that such motives do exist. The latest case in point, in the radical milieu, is the ideological current of which Herbert Marcuse is the best known theoretician.
This current has a textbook now: Marcuse’s essay in the book “A Critique of Pure Tolerance.” Here, almost in so many words, Marcuse condemns freedom of speech ( “tolerance” of it anyway) for those whose views are antithetical to him, and, fairly clearly, advocates an “educational dictatorship” of enlightened intellectuals like himself who know they are right and everybody else is wrong. He does this with only occasional backing-and-filling and a smidgen of Hegelianized doubletalk, but not much. (See especially his pages 109-111 and 106, but the whole essay has to be read to get the full flavor.)
What makes this almost fantastic is that this modest proposal for “intolerance” is made in the context of what is Marcuse’s other ideological trademark. This is his view that there are no masses who can be mobilized for progressive struggles. “Dissent is declining,” he maintains (quite wrongly, of course); and the dissenting minorities are “small and powerless.” There is nobody to fight (except a handful of intelligentsia of his own stripe). Nobody has painted a more pessimistic view of the social scene. And yet, precisely in this situation, he writes a manifesto advocating that free speech and democratic rights ( “tolerance”) be denied to views that you consider pernicious!
This is all the ammunition that our witchhunters need. It endorses everything Sidney Hook has ever written in justification of the witchhunt though naturally Marcuse and Hook would use the same theory against different victims. To paraphrase the famous “It is not merely a crime but a blunder,” one has to say, “This is not merely a blunder this is bloody suicide.”
Perhaps as a result of Marcuse’s influence, the SDS’s Carl Davidson (New Left Notes, 13 Nov. 1967) has an extraordinarily crude formulation of this point of view. His conclusion: “it is the duty of a revolutionary not only to be intolerant of, but to actually suppress the anti-democratic activities of the dominant order.” The reason: “our critique argues” that this social order is anti-democratic. Now if someone else’s critique “argues” that it is Davidson and his friends who are anti-democratic, then that someone else has just as good a case for suppressing him and his similars. Not only that, but since the “dominant order” is indeed dominant, whereas Davidson represents a small minority, there is no question of who is going to suppress whom. The very idea of an obvious minority talking about suppressing the “activities of the dominant order” is itself a give-away if that order is indeed dominant. Among the things it gives away is that such grandiose bluster is a mark of impotence and frustration, not strength and confidence.
These elitist types including the Marcuse types who give their reactionary views a radical cast fear democratic liberties in their very bones. They are in the full tradition of Carlyle and Ruskin and H.G. Wells and similar theoreticians expressing the impotent aspirations of disrooted intellectuals for Platonic kingdoms of the philosopher-despot (whose visage usually has a curious resemblance to their own).
While they are impotent themselves, their real role is as apologists for less impotent would-be despots.
Revolutionary socialists propose to do the opposite. We want to push to the limit all the presuppositions and practices of the fullest democratic involvement of the greatest mass of people. To the limit: that is, all the way. No progressive social transformation is possible except insofar as the largest mass of plain people from way below in society start moving. And this movement both requires, and also helps to bring about, the fullest opening-up of society to democratic controls from below not their further restriction. It means the breaking up of anti-democratic limitations and restrictions. It means the greater unleashing of new initiatives from below. In other words, it means the exact opposite of Marcuseism.
The issue of free speech is only one sector of this greater question; but it is nonetheless a test of politics.