Can Free Speech Aid Minority Rights?

with Jonathan Rauch

Lately, free speech has come to be viewed with skepticism—and even derision—by progressives who see it as an inconvenient roadblock to securing what they see as necessary rights for minorities. Why should we recognize the right to free speech, the argument goes, when it’s so often used to denigrate our humanity?

This wasn’t always the case. My guest this week, Brookings Institute Senior Fellow Jonathan Rauch, has firsthand experience of free speech’s benefits for minority rights. As an advocate for gay marriage, Jonathan had few allies outside of the LGBT rights movement. Gay marriage advocates could not simply shout down gay marriage opponents—they had to convince them, at least those who could be convinced. In one sense, the right to gay marriage was won in the courts, culminating in the US Supreme Court’s Obergefell v. Hodges decision. But in another equally important sense, gay marriage advocates won through the slow, grinding work of making the case before the public, in newspaper editorials and magazine articles and TV roundtables, and, most crucially, in one-on-one conversations with friends and family members who may have been uncomfortable with the idea at first.

Had gay marriage proponents simply called skeptical friends vile homophobes and refused ever to speak with them again or demanded that gay marriage opponents be banished from the airwaves and debate stage, it’s unlikely that gay marriage would be as widely accepted as it is today, even if the right was secured in the courts. They knew that any formal right—including that of free speech itself—that hasn’t passed through the gauntlet of public debate would find itself on shaky ground when exercised in the real world.

That’s equally true for other minority rights, which can only be secured in practice with the assent of a legitimating majority. It’s possible that cancelation, deplatforming, and other mob tactics could eventually result in friendly legislation or court decisions. But coercing the public rather than acknowledging their concerns and trying to change their minds will only produce a backlash by the majority. In that case, those hard-won rights may turn out to be worth little.

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GLENN LOURY: You know James Scott, the political anthropologist at Yale, Weapons of the Weak. You know who I'm talking about?

JONATHAN ROUCH: Yeah, I do. 

So what about the argument about shutting down Ray Kelly when he comes to speak at Brown University? I think the year is 2013. This is the police commissioner of New York City. He's a stop-and-frisk advocate and practitioner. The students and some of the radical townspeople in Providence, Rhode Island, Brown University, where I live and teach, think “no justice, no peace, no racist police.” The stop-and-frisk advocate is gonna come up here and tell us about policing when he is really trying to justify white supremacist domination of black bodies on the streets of Manhattan.

What's wrong with shutting him down? That's a weapon of the weak, in James Scott's terminology. That's a way of us exerting what little bit of power and influence we can over this conversation. After all, he's for stop-and-frisk policing! 

Well, you know more about stop-and-frisk policing than I do. But I know a little bit about weapons of the weak. The first assumption that is wrong is that shutting down speakers actually works. What you really do is you draw more attention, not less, to what it is they have to say.

People don't know this, but the Weimar Republic had extensive hate crimes laws and prosecuted Adolf Hitler under them. This was one of Hitler's most successful tactics. Nazis put up posters all over Germany saying, “What is it that Herr Hitler is saying that the authorities don't want you to hear?” So a good way to draw attention to a speaker, whether it's Ray Kelly, or for that matter, Mike Pence or Ben Shapiro or whoever it is that someone thinks is outrageous, the best way to draw attention to them is to go on one of these campaigns to deplatform. Assuming that this person was right, that Ray Kelly is someone who should not be listened to, the best way to accomplish that is nobody should show up. If Ben Shapiro were greeted by crickets, or Milo Yiannopoulos were greeted by crickets in the hall, their speaking fees would drop and they'd go away. So that's the first thing. It doesn't work. 

But the second point is more fundamental. It goes to what John Stuart Mill said, famously, in On Liberty, which is that the man who knows only his own side of the argument does not even really know that. I was an advocate for years, starting in the mid-'90s, for same sex marriage. Everyone was against it. Democrats were against it. Republicans were against it. We had no friends, at that point, in that movement.

What we were able to do, because we were not in a position to shut down people who disagreed with us, is come to understand their arguments and the weaknesses in their arguments, which meant that when we confronted them—and boy did we—we were able to shred their arguments. I was able to state their arguments better than they could and then demolish them piece by piece. And if somehow they had not been allowed to make those arguments, and I had not had to hear them and strengthen my own case, I don't think we would've won. 

Well, I have a lot of sympathy for that. But what about the N-word? What about the Confederate flag? And ultimately, what about Donald J. Trump? I mean, what about racism? What about blackface? Surely there is a decent drapery that applies to how it is we express ourselves in public, where we give deference to the sensibilities of the marginal and where we recognize that history has taught us certain lessons, and they need to be reaffirmed.

It depends where you're drawing a line. If you're saying we should try to be polite and kind to each other, and then when we approach someone in a critical conversation that we should try to do that respectfully and focus on the argument and not the person, I completely agree. There are people who are crazy, obnoxious, stupid, and evil. Usually the best thing to do about them is ignore them and let them drift off into their own little universe. If shutting them down worked, then maybe I guess I'd consider it. But we need to know where the racists are in order to be able to confront them. 

Hate speech is a problem not because it's speech, but because of the hate that lies behind it. And hatred comes from fear and ignorance. Most people don't get up in the morning—some do, but most don't—get up in the morning and say, “Who can I hate on today?” They were afraid of homosexuals because they believed we were going to bring God's judgment down on America, subvert the US government, and seduce and convert their children. And what we had to do is confront those ideas. And yes, sometimes they were very rudely expressed.

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But sometimes those ideas were very politely expressed yet were just as harmful, just as inimical. What I tell people is that suppressing those comments, suppressing that speech is like dealing with global warming by breaking all the thermometers. It goes after the symptom. It does nothing about the cause. In fact, it makes the cause worse, because when groups of activists begin using their political power to decide what the rest of us can say, the rest of us get unhappy about that and vote for, you named him first, Donald J. Trump. Does that make sense?

Yeah. It makes a whole lot of sense to me. 

I can't tell if you're strawmanning here or if your devil's advocating.

Good. That means I'm doing my job. 

That is good. You need to holler at me. When you see chinks in my armor, I want to know if you think I'm missing something.

I'm watching. I'm looking. 

So what do you say when you're hit with this argument that minorities are hurt by free speech?

I have a hard time talking about this in the abstract, uncoupled from the actual substance of the thing. So let me be concrete. Charles Murray and Richard Herrnstein write a book. They publish it in 1994. It's called The Bell Curve. In it, they argue a lot of things, that IQ is important, that it's largely under genetic control, that it differs substantially between racial groups, and that some part of that difference is heritable. It's a part of what's going on, biologically. They're agnostic about whether it's 30% or 60%, but some part. 

Test case. Really a test case. I'm black. Are my people genetically inferior? I mean, that's more than an insult. That's an afront to the dignity and integrity of my person. That's an effort to direct the public conversation in such a manner that I would be characterized as somehow less than fully human. So I object. 

On the other hand, I'm a social scientist. And I think, well, there are questions of objective fact here about, what is intelligence? How does it vary in human populations? To what extent is it under what kind of influence, how important is environment, and so on. You can't wish the answers to those questions. You have to learn the answers to those questions. I'm deeply invested in the intellectual, political, civilizational framework that allows me to ask and answer questions of that kind, even questions that cut so close to the bone. 

Where I would come out is, I don't necessarily agree with Murray's answer to that question. Let's parse it. It's a long, complicated, interesting conversation. But he gets to ask. The Southern Poverty Law Center doesn't get to shut him up by calling him a white supremacist because he has the question. The currency of the realm is data and argument. If you disagree with him, you have to refute him.

This is gonna help me, because I sometimes feel that I have trouble stating these arguments in a way that's emotionally binding. What if someone says to you, “Well, that's fine Dr. Loury, but what possible social good could be served by dragging everyone through a conversation about whether blacks as a race are intellectually inferior, given the history of that proposition in America? What good could possibly come of that?” What do you say? 

I say if the question were, “Should the National Science Foundation appropriate ten percent of its budget to fund studies of this kind?” then your concern is relevant. That is, you can ask and I can agree, we shouldn't make this a priority of our research funding. But if the question is whether or not Charles Murray sitting in his study gets to ask this question and pursue it out of his own interest, then that utilitarian calculation—which is speculative by the way, the calculation—about what good could possibly come, how can we know? We don't know what we don't know.

Maybe if we identified the deepest root of intellectual variation and intellectual performance in human populations, we would discover interventions, like these eyeglasses I'm wearing that improve my vision. But we don't know enough about the underlying structural phenomenon to be able to even contemplate whether or not such would be the case. Isn't this John Stuart Mill too? You would be presuming yourself omniscient to declare, in advance of the inquiry, what possible good could the product of the inquiry provide. We do have to make priorities in our practical judgments about what we do and we do not allocate our resources to. And there I would weigh the consideration that you raised as more relevant. Something like that. 

Sure. That all seems right. There are two points we touched on that are relevant here. One is that, that The Bell Curve—which by the way, I did not read—is like 500 pages long and very dense.

With appendices and footnotes, yeah.

That book would've sold, what, 15,000 copies if Murray and Herrnstein were lucky, if not for the fact that it became the center of a major controversy. And so hundreds of thousands of people thought they had to go buy it and see for themselves. So the effect of turning that whole book, which had a lot of stuff in it and one chapter, I believe, about race …

That's correct. 

The effect of focusing on that one chapter and demonizing it and saying “you can't say this” was exactly the opposite of what the people wanted to do.

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