Against legalistic conceptions of free speech

I think back to the day I met my girlfriend. We talked about free speech. Someone said that as long as the law does not punish speech, there is free speech. I disagreed. If social norms punish speech, if saying the wrong thing makes it impossible to have a career or home or family, then there is no free speech. 

Imagine a society. There are three political factions, the 1’s, the 2’s and the 3’s. There are no legal restrictions on speech but there is a strong social taboo against supporting 3. If you publicly support 3, others will choose not to associate with you. Employer’s won’t hire you. If you have a job, you’ll be passed over for promotion or fired if you choose to talk about why you like 3 in the workplace, despite talking about liking 1 or 2 being fine. Talking about 3 may even mean your children are taken away, not because talking about 3 is illegal but because it indicates you’re a bad person and likely can’t be a good parent. It may even mean your family disowns you, no one will marry you and no magazine, paper or journal will publish your work. Is this society free? Does it have freedom of speech? The answer is no and the absence of laws discriminating against believers in 3 doesn’t change that.

A society with perfect freedom of speech is one where people are free to speak their minds. A society with perfect freedom of religion is one where people may worship whatever gods they wish. A society with perfect freedom of association is one where people can spend or not spend time with whoever they wish. If people are less free to do these things, then their society has less of that freedom. Whether the restriction is enforced through the institutions of the state or through social norms is not relevant. Both are ways the collective controls the individual.*

Counterpoint:

  • There is a conflict between people’s freedom to associate with who they wish and other people’s freedom of speech.
  • State restrictions on speech are clear. What social norms constitute restrictions, less so. Does any norm which makes speech more (socially) costly reduce free speech?

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