Vox Day has been arguing against Free Speech for a few months now, and laid out what he believes to be a knock-down argument against it tonight in one of his livestreams. His argument is based on a book written to defend free speech called A History of Freedom of Thought by J.B. Bury, and it begins by distilling Bury’s argument into a syllogism:

1. Free thought exists
2. Sincerely believed thoughts are difficult to suppress
3. Therefore free thought (in any valuable sense) includes free speech

(1) and (2) are more or less factually accurate. The problem — according to Vox — is that (3) does not follow from these premises. (1) is a morally-neutral observation, which might just as well not be true (for purposes of moral calculation). (3) is a kind of “ought” expressing an obligation to preserve (1), as if its observable existence carried with it some kind of moral imperative… and this is done through a rather shaky train of reasoning (Vox observes that Bury cleverly uses “difficult to suppress” rather than “impossible to suppress,” and “in any valuable sense” in his conclusion, rather than simply stating that “free thought includes free speech”). Thus, Bury tries to take an observable reality — freedom of thought — and transform it into a right — freedom of speech — despite rejecting the prevailing theory of natural rights.

If I believed that the logic of freedom of speech depended upon J.B. Bury’s summation of Enlightenment morality, I would be forced to agree with Vox. Bury’s argument for free speech has plausibly valid premises, but is unsound.

However, philosophers do not simply come up with ideas. Often, their task is to defend an existing idea (sometimes unnecessarily), or to give an account of the origins of some present state of things. In this way, I do not believe that “the freedom of speech” was created in the Enlightenment, although many modern understandings of the concept originate there. Nor do I believe that Bury’s personal ideological loyalties — which Vox alluded to in reference to socialism and gay marriage, all the way back in 1913 — can be ignored as unrelated to the particular manner in which Bury chose to defend free speech.

I believe that there is an older (though admittedly more difficult to define) conception of freedom of speech, which is defensible, and that by condemning “free speech” as Enlightenment nonsense, Vox Day is throwing the proverbial baby out with the bathwater. There is a lot of Enlightenment nonsense in modern notions of free speech, but that isn’t where the story of free speech truly begins, contra J.B. Bury’s beliefs about where Enlightenment notions of free speech start.

We can actually begin this after the Enlightenment, here on American soil. Up until 1918, “the Freedom of Speech” had a very precise legal meaning, and that was the prohibition of prior restraint. Nothing more. Only under Justice Oliver Wendell Holmes’ dissent in the Abrams case (defending a socialist’s right to undermine war efforts at the time) did “freedom of speech” come to acquire the understood meaning they hold today… and that only happened after being persuaded by lifelong leftists Learned Hand and Harold Lasky. For early Americans, there was no contradiction between the First Amendment and the Alien and Sedition acts of 1798.

If the right to freedom of speech comes from the Enlightenment, and from notions of free thought simply needing release like a bladder held a few minutes too long, then how could such an interpretation exist?

It exists for the same reason that for all the Enlightenment-talk in the Declaration, the actual Constitution more closely resembles English Common Law or the laws of the Roman Republic, both of which — importantly — predate the Enlightenment.

In fact, one excellent source for an understanding of the Common Law was written by Justice Oliver Wendel Holmes himself. I have not finished it yet, but so far as I’ve read, it is much better than his dubious rulings in the Schenck and Abrams cases. Tough cases, as they say, make for bad laws.

The Freedom of Speech does not originate with the Enlightenment, any more than the concept of Reason originates with the Enlightenment (and Enlightenment defenders will often insinuate that claim). What originated in the Enlightenment was a more expansive and explicit interpretation of free speech which claimed an older but more complex institution as its own, and asserted that it stood or fell on the shaky foundation of liberal humanism.

So what is real Freedom of Speech then?

It is a tricky question… like asking “what is honor?” or “what is comedy?” It almost defies conceptual analysis, and yet we can sense its presence or absence in a given situation. We can tell that a joke is (or isn’t) funny, even if we can’t explain why it is (or isn’t) funny. Similarly, a society can maximize the free speech of its citizens without an explicated theory of what Free Speech is, or how it is to be protected.

Nevertheless, I am defending Free Speech, and so I will try to define it as best I can.

Freedom of Speech is the experience of unrestricted exploration and debate in the intellectual and political realm of society.

One of Vox Day’s big criticisms of modern sophists is their shifting and manipulative use of altered definitions. In that vein, it may appear that I am doing just that, and taking an established concept and redefining it to make my case.

For the reasons outlined above, I believe it is actually the liberal humanists who have done this, over a period of several hundred years, and now their redefinition has become accepted as the “correct” one. I believe my definition more closely summarizes what was referred to as “freedom” generally by Cicero in his defense of the Republic, or what Erasmus spoke of when he said that “in a free state, tongues too should be free.” The liberal conception of “free speech” is a kind of autistic mockery of the concept as practiced prior to the enlightenment. But if it is more conceptually clear, we can semantically distinguish the two concepts and simply give them different terms:

1. “Enlightenment Free Speech” (EFS) – an explicit theory of rights mandating the respect and protection of free speech (J.B. Bury’s variety)
2. “Common Law Free Speech” (CLFS) – an experiential state of freedom that is achieved and protected through national homogeneity and good statescraft.

Vox Day’s criticism is an explicit rejection of EFS, and in this rejection, he is correct. But “free speech” refers to both EFS and CLFS, and CLFS is both real and valuable. It should not be rejected on the grounds of EFS being wrong.

It may sound like I am playing fast and loose with definitions when I define freedom as an experience. But what else could it be? Is it really a state of lacking restrictions? The desire for which freedom is a tool is the achievement of power, and such an achievement requires structure in order to exist. You cannot, for example, learn to play the violin without the restrictions inherent in the instrument itself. The “freedom” felt by a talented violinist freestyling cannot exist without the restraints imposed by the very nature of the act. If freedom means anything at all, it must refer to the experience of freedom, and not to the state of lacking constraints.

In short, Vox Day is not wrong in criticising the Enlightenment conception of the Freedom of Speech (EFS), as outlined by J.B. Bury. I confess, I was drawn to this conception myself for a time, mostly by Christopher Hitchens. On close inspection, it is untenable.

But that doesn’t mean that CLFS “free speech” is also untenable. It existed for hundreds of years prior to the Enlightenment, is not a “right,” and its purpose not only was not to subvert Christianity, but was — in at least one case — explicitly advanced by a Christian, for Christianity (aforementioned Erasmus, 1516). CLFS does not protect libel, nor does it protect the undermining of national integrity (aforementioned Alien and Sedition Acts), but it has facilitated the freedom of inquiry, science, political improvement, and religious exploration in Western Civilization for hundreds of years; implicitly for thousands.

In the Common Law sense of the concept, the Freedom of Speech is not just compatible with Western Civilization: it is, to a degree, an essential ingredient of Western Civilization.