As debates over “wokeism” and cancel culture sweep across college campuses, school boards, the New York Times editorial page, and even Congress, free speech has proven to be a protracted point of conflict. Since matters of speech deal with the very medium of resolving other issues and have significant bearings on how we conceptualize freedom in the U.S., they are bound to engender much passionate disagreement — and we owe them sincere thought and candid discussion.
You may have never heard of the “persuasion principle” — the idea that the government may not restrict speech out of fear that it will persuade people to engage in harmful, hateful, or even illegal conduct. Coined by David Strauss, the persuasion principle arguably underpins First Amendment jurisprudence in a number of areas, from advocacy of illegal action to defamation to hate speech. While the principle is extracted from Court precedent instead of the Court explicitly relying on it in its reasoning, I will consider how the principle applies to the government’s role in regulating speech before examining how it might animate our discussion of free speech on college campuses.
First, let’s look at a few applications of the persuasion principle. When citizens advocate illegal conduct, the government may only prosecute them if their speech is directed at inciting and likely to produce “imminent lawless action.” Strauss explains that the persuasion principle justifies the requirement of imminence because such speech foregoes “the rational processes of deliberation” — in other words, this speech lacks the capacity to persuade given the circumstances of its utterance, whereas other speech merely advocating lawless action is constitutionally protected. Similarly, false statements of fact amount purely to deception, not persuasion, and the government can thus punish defamation without casting aside the First Amendment.
The persuasion principle’s application to offensive, hateful speech is far more nuanced. Strauss lays out two ways of interpreting hate speech: first, as speech that can persuade people to believe and carry out heinous things, in which case the persuasion principle clearly prevents the government from punishing it. Second, hate speech can be understood as intrinsically offensive speech, meaning it is offensive independently of worries about persuasion — think racial slurs and other speech “that can be said to inflict a psychic wound on the listener.” In the second case, the persuasion principle does not directly forbid the government from punishing intrinsically offensive speech, but Strauss explains why the principle still requires strong limitations on the government’s power to do so. Essentially, it is often impossible to separate speech’s intrinsic offensiveness from its capacity to persuade people to commit hateful acts, and this raises the risk of the government seeking to suppress legitimate speech on the pretext that it is intrinsically offensive. Therefore, the persuasion principle prescribes a cautious tolerance of restrictions on speech “when there is a low risk that the government’s real concern is the persuasive effect of the speech.”
What does this bear for our social culture of free speech? Of course, almost nobody would argue that our culture should be as tolerant of speech as our laws must be. Nonetheless, can we glean insights from First Amendment doctrine, through the persuasion principle, that are useful for contemporary conversations on free speech?
Let’s look at the issue of guest speakers on Harvard’s campus. While the last instance I remember of students trying to cancel a controversial speaker’s appearance was in fall 2020 with the controversial social scientist Charles Murray, speech issues are always salient on campus; a recent HPR Winter Poll found that 35% of Harvard undergraduates oppose giving a platform to supporters of President Trump (a marked increase since last year).
What does the persuasion principle say? It’s fine to invite controversial speakers, and people who disagree should simply not attend their events. This is an unsatisfactory answer for many who find certain speech egregiously offensive — or believe that certain speakers will misuse their platform to spread lies or hate. In fact, Strauss does lay out a couple qualifications to the persuasion principle, one of which is that it can be overridden if the consequences of permitting speech are “harmful enough.”
But what does harmful enough even mean? Few people estimate the exact harm of certain speech in the same way. And doesn’t it contradict the very idea of free speech for society to make arbitrary judgements of harm to deplatform certain speech?
It’s important to realize that society draws these lines anyway. Even most passionate free speech advocates would elect not to invite true neo-Nazis to speak on campus. Irrespective of whether they would claim this is because of the offense that the speaker’s ideas causes or because the speaker’s ideas are simply bigoted and do not hold any educational value, nearly everyone draws lines for which speech should be platformed.
People from different backgrounds and demographic groups may draw their own lines differently. Far fewer Black Americans than whites believe that the First Amendment protects them, and whites are far more likely to believe that it is easy for them to speak freely without consequence. When a speaker with controversial views on a racially-tinged political issue such as police violence comes to campus, it may be easier for a white person to dismiss the harm component of the persuasion principle due to a lack of personal connection to the issue. White people are also substantially more likely than Black people to say that being too easily offended is a major problem, while Black people are markedly more likely to say that saying very offensive things is a major problem.
Deciding many contemporary issues of “social free speech” may boil down to an optimization problem. On the one hand, we must demand that social boundaries are wide enough to permit a broad range of speech that leads to critical thinking and animated discussion on our most sensitive issues. On the other hand, this naturally exposes many people to disagreeable perspectives they find highly offensive and even emotionally harmful, and we must search for boundaries that satisfy this criterion without pretending that truly all speech is equally valuable. This is not an easy question, and the best answers may shift over time as people weigh ostensibly neutral principles like free speech against the heavy emotional toll that political speech can take. I cannot profess to know, nor am I suggesting, what the correct boundaries are, but the persuasion principle, extracted from analysis of Supreme Court First Amendment precedents, provides a plausible framework for evaluating the boundaries of speech in American society.
Image by Ian Hutchinson is licensed under the Unsplash License.
