In recent times, the topic of free speech has come up again. In a twist that would've shocked Debs, it is no longer the radical unionists fighting for freedom of speech as was in the Free Speech Movement, but rather the conservative right to cries of oppression. How then can we as anarchists approach the topic of freedom of speech in light of these seeming contradictions?
What is "speech" in "freedom of speech"?
When one speaks of freedom of speech, the term "speech" here does not refer to the common sense of speech (verbal communication), but rather the communication of ideas in general. Some of the most common example that expresses this include the The Declaration of Rights of Man and of the Citizen, which states that "the free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law." A less restrictive example that does not include the clause regarding abuse would be the Universal Declaration of Human Rights, which states that all human beings "has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." In short, the notion of "speech" here commonly refers to the holding, seeking, receiving, and distribution of information.
Speech act and freedom of speech
We have the idea of a "freedom to hold, seek, receive, and distribute information", yet we don't seem to have the idea of absolute freedom to do many other things. What then, demarcates these two forms of activities? The most common argument of demarcation is that speech cannot create physical harm, and as such any interference with such is unjustified. But one can easily see that speech can in fact cause physical harm. The simplest and most commonly used example is yelling fire in a theater: one could cause massive panic during which people could be trampled and hurt. Critics of this argument could point out that the argument originated from the 1919 SC ruling in the case of Schenck v. United States, where Charles Schenck, an anti-war activist protesting the draft, was convicted despite his First Amendment rights. The question this objection poses however misses the point: the issue with the ruling was not that it deemed that speech could cause enough harm to meet Mill's harm principle ("the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others"). The problem is not in recognition that the notion that speech can harm or affect others significantly, but rather how the state decides the limitations of free speech (we'll come to this later).
The idea of speech affecting the world (which is often referred to as "Speech act") is even better understood if we the later Wittgenstein's view of speech, which can be most summarily described using thesis 43 from Philosophical Investigations: "the meaning of a word is its use in the language." This applies to most words, which are often used not just to convey information but most of the time to change the world in some way as well. An example Wittgenstein used is the term "slab": while the term commonly refers to a a thick plate or slice of certain materials such as stone, the context can give the word entirely new meanings. If you and a friend work at a construction site and the friend suddenly points above your head and yell "Slab!" in panic, it probably means that a slab is falling or about to fall on your head. Similarly, at a dinner table, the question of "Are there any bread left?" often isn't just an inquiry into the presence of bread, but also tells the other person to give you some bread. Some speech not just indirectly but directly brings about changes in the world as well: if your boss says "You're fired" he is not just stating something but also depriving you of your employment. One can clearly see then how it is not just "fire in a theater" where speech also is an action and not just passive expression of information, it is rather the case ubiquitously.
Free speech and the powers that be
Speech then can certainly not be "absolutely" protected, nor can it be viewed as neutered and without the ability to cause harm. How then is speech currently limited? As it exists in the United States, the limitations of freedom of speech are certainly not absolute as demonstrated by the Schenck ruling. The ruling also tells us that it is not determined by Mill's principle of harm: protesting against a draft constitutes criminality but rallying for war (which as all know involves sending people to die killing others) is perfectly acceptable. What then can the Schenck ruling along with countless other precedents tell us about freedom of speech? As we look through them, one thing becomes clear: it is often those who are in power who are ruled in favor of. Cases where the one in power is ruled in favor of to limit the speech of those less powerful. Some clear examples of this include the Schenck case as well as various others such as Whitney v. California, Abrams v. United States, Gitlow v. New York, Debs v. United States, and Dennis v. United States. In all these cases, the individuals ruled against hold views that were (and are) deemed undesirable by the state such as syndicalism and socialism. It was only until Brandenburg v. Ohio that these limitations on speech were either explicitly overruled (as was the case with Whitney v. California) or considered outdated. Who was Brandenburg? Brandenburg was neither anti-war, nor a syndicalist nor a socialist. He was a white supremacist Klansman, who organized a rally where it was proclaimed that "our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race". And indeed the Supreme Court did overturn his conviction in relation to the rally upon his appeal, something that never happened to Debs and Gitlow.
What then is left of free speech?
Having established that a) freedom of speech cannot be absolute, b) speech are actions and can affect the world just as other actions do and c) it is currently dictated by power, what then is left of the possibility of a clear view of freedom of speech? Mill's harm principle seems to be the appealing choice here: that limitations of one's freedom of speech is only justified when it is done to prevent harm to others. Yet one could argue that in all the rulings above, the Supreme Court did just that: they protected the nation against strikes which would impair the imperial war machine, they protected the industries against the perceived violence of syndicalism. One can thus see that Mill's harm principle, while serving as a solid foundation, is very much subjective. But it is this very subjectivity that makes it desirable: who are we to set the absolute standards for the future? It is through this subjectivity that we can be case sensitive and recognize the differences from situation to situation that would have been difficult to predict and predetermine using a set of rule. Discrimination can be difficult to preempt especially if they arise long after we set our rules and are based on some characteristic we failed to consider, however the flexibility of Mill's harm principle would allow us to make a consistent decision. A demonstration of such flexibility would be how such broad interpretation of the harm principle is certainly not what Mill intended: Mill wrote that "an opinion that corn-dealers are starvers of the poor, or that private property is robbery [...] but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard", whereas we as anarchists would certainly see the opposite, that such declarations are not just not harmful but in fact necessary for society to move forward. The proclamation of the harm principle alone leaves much up to be reinterpreted and reformulated by the future generations, as well as by those who currently live in situations radically different from ours.
Chomsky defended his freedom of speech by stating that "if you're in favor of freedom of speech, that means you're in favor of freedom of speech precisely for views you despise" in defense of his free speech absolutism. If such is the case, then we must certainly not be in favor of freedom of speech, and supporting such would be an impossibility. One can only shudder to think of the harm that rallying and organizing white nationalists could do. Thankfully, a subjective interpretation of the harm principle can inform us while retaining the flexibility that must come with an anarchist view of speech.