Should Free Society Limit Free Speech?

Charlottesville protester Peter Cvjetanovic claims this photo doesn't represent his real
personality. But he's chanting Nazi slogans which inherently threaten violence against
others based on their demographic group. Which is the Fundamental Attribution Error,
though we'll talk about that later.

This week, I’ve gotten drawn into multiple debates about when and whether a free society places limitations on free expression. Which isn’t surprising. For many of us, the boundaries of free speech were primarily thought experiments in philosophy courses. For white Americans especially, we consider free speech our native birthright, and expect nobody will circumscribe our ability to say anything. Events this week sorely test that assumption.

For most, the stereotypically unacceptable extremes of free speech are limited to obscenity and incitement. Language (or images) so vulgar and transgressive that it undermines social order should, courts agree, be squelched. And no matter how crude my language, I can disparage individuals or groups until I threaten their bodily safety. We accept these limits tacitly. But I suggest we go further. We should consider both what language says and does.

Imagine a cranky drunk. Well into his fifth pint, he blurts: “Christ Almighty, I hate Jews.” He might even say: “That Doctor Goldstein across town overcharges for routine shots, what a Kike.” As thoughtful people, I’d hope we agree that’s hurtful, possibly even damaging language. But it serves a purpose, even if only to signal we should avoid this guy, since most people say drunk what they think sober. We know he thinks offensive thoughts.

Things change if that guy says: “Somebody out to put a cap in Doctor Goldstein’s ass.” We could consider that a threat. Depending on our drunk’s history, we might toss him in a cell until he dries out, for his own and Dr. Goldstein’s safety. But if he says “Get your pitchforks, boys, we’re gonna teach Goldstein a lesson,” we’d agree he’d crossed a line. Because his language no longer described something, it actually constituted an action.

When Queen Elizabeth smashes a bottle of gourmet plonk against a battleship’s prow and says,/ “I christen this ship the HMS Insurmountable,” her words don’t merely describe something which already exists. Her words create a new reality. She bestows upon the vessel, and its subsequent crew, a concrete sense of identity. She recognizes the ship into membership in the Royal Navy. She initiates the ship into a maritime valor tradition.

Rhetoricians call this “performative language,” meaning the words change something. The change may have only symbolic value or change the mental landscape rather than making physical changes: for instance, naming your baby doesn’t change the baby’s physical structure. But it grants the baby an identity, which permits it to participate in human civilization. Your unnamed baby is interchangeable with other groups of human cells and organs; naming bestows individuality.

This picture was taken in Charlottesville, Virginia, on 12 August 2017. The Nazi salute
is a prime example of performative language, since it pledges allegiance to a particular
ideology, which itself killed sixteen million unarmed civilians.

Incitement language does something similar. In Charlottesville, crowds surrounded a Black church, brandishing torches. This admits multiple interpretations, since firelight vigils have a lengthy Christian tradition. Without actual violence occurring, how do we interpret this event? By language. These crowds didn’t pray, they chanted racist slogans meant to cause fear, and keep parishioners contained. The words spoken, not the actions taken, define what happened, and what makes it execrable.

Sadly, I hear racist language regularly. Working construction, I’ve heard people drop N-bombs, and other language I consider wholly offensive. Construction is the most thoroughly segregated workplace I’ve ever seen, physically and rhetorically. But these racist spewings aren’t performative language. When my colleague says hurtful, mostly uninformed things about African Americans, he reveals himself, but doesn’t change anything. And I’ve seen him work with Black people just fine.

The dynamic would change if my colleague changed his language, however. When he drops N-bombs, his hurtful words drive wedges between himself and others. Which is jerkish, but tolerable. If he recited Nazi or Klan slogans, language historically associated with racially motivated language, he wouldn’t be merely speaking, he’d be willfully causing others to fear for their bodily safety. Violent language creates a violent interaction, even without physical bodily violence.

Therefore, we can divide language into two categories: descriptive and performative language. Descriptive language, even when vile, is ultimately harmless. That’s why anybody can say “I hate Donald Trump.” Performative language gets further divided into benevolent and harmful performances. “I love you” is benevolent performative. “I hope Trump is assassinated” is harmful, and deserves every backlash it receives.

Language that describes even the most vile depths of human behavior deserves every protection, because slippery slopes do exist. But language that says something differs, measurably, from language that does something. Society should scrutinize all performative language to ensure it doesn’t harm others or undermine society. Which, oh wait, it already does, with obscenity and incitement.