In defense of his recently published piece “Conservatives and Freedom of Speech,” Professor Arkes, writing in Public Discourse, carefully responds to Professor Robert Miller’s critique that even the most objectively offensive and harmful speech ought to be completely protected in order to safeguard against the tendency of legislatures to make errors of “false positives”. Professor Arkes notes that although mistakes will undoubtedly occur, the degree and frequency of such instances can be curtailed by presuming in favor of the freedom to speak—setting a heavy burden of proof for those seeking to restrict speech—and that it is better to seriously consider what forms of speech fall outside the range of appropriate discourse, and may cause real harm, by making distinctions between “epithets and arguments”, than to allow law to become utterly devoid of moral judgement.
“Free Speech, Ordinary People, and Ordinary Judgments: Hadley Arkes responds to Robert Miller” Excerpts:
“…we can take some useful precautions against errors of judgment by putting any question to a jury in a libertarian cast: We presume in favor of the freedom to speak, as we would presume in favor of any other freedom. If there are any words on the borderline of derision and neutrality we can work with the presumption of letting them go. The jury should be encouraged to convict, or the judge to decide, only when the words or expressions would be recognized unambiguously, in the conventions of the place and time, as terms of assault and derision.”
“For Miller, the dread of mistakes is deepened by the notion of mistakes made by the government, wielding those powers of law. But he surely knows that some of the worst suppressions of speech these days come in the illiberalism of the academy, with private thugs intimidating the presidents of private colleges… It is clear that some conservatives think they can protect conservative students on the campuses by teaching a new doctrine that denies any moral ground for the restriction of any kind of speech. But as Stan Evans used to say, the problem of pragmatism is that it doesn’t work.”
“Robert Miller does not think that the distinction between epithets and arguments will carry the day. But if we have a public discourse that no longer recognizes or respects the difference between calling names and making arguments, then that is a sure enough sign that there is no longer any ‘public discourse.’ Shouting slogans at one another cannot be the same as giving reasons. And if that is a lesson that a Supreme Court cannot teach any longer to the country, then what has ‘judging’ itself become if it, too, no longer recognizes that there are reasons and arguments to be weighed?”
“I’ve relied over the years on Aquinas on this point: That it may be enough for the law to pick out certain clear cases for the sake of teaching a lesson. It was neither practicable nor desirable that we have powers of law capable of extirpating all evils. It may be quite enough to compress evils or wrongs to a level that makes them at least more tolerable. If Miller is concerned with prosecutions uncontained, freed from any sense of prudent restraint, his quarrel is not with me or with the scheme I’ve been favoring all these years.”