REVIEW: The Free Speech Conundrum

If neutrality regarding speech is impossible, how do we settle our disputes about it?

The Collapse of Freedom of Expression: Reconstructing the Ancient Roots of Modern Liberty by Jordi Pujol. University of Notre Dame Press, 2023. 394 pp., $70.00

On March 9, 2023, federal judge Kyle Duncan, a Trump appointee, arrived at Stanford Law School under the auspices of the Federalist Society to deliver a talk on “Guns, COVID, and Twitter.” Student protesters, angry at Duncan’s use of pronouns in a case involving transgenderism, interrupted his talk. The accusations the protesters shouted ranged from “Scumbag!” to “You’re a liar!” and other more anatomically intriguing insults. 

Far from defending Duncan’s right to speak, Tirien Steinbach, the law school’s diversity dean, appeared to take sides against Duncan, claiming that his ideas and rulings had caused “harm.” Jenny Martinez, Dean of the law school, issued a formal apology to Duncan, but a few days later students protested at her Constitutional Law class, claiming “counter speech is free speech.” 

Do Duncan’s rulings really constitute “harm”? Did he make Stanford an “unsafe” place for those who disagree with him? Were students who shouted Duncan down exercising their own free speech, or were they using verbal intimidation and vulgarity to silence views with which they disagree? 

This is just one example that illustrates the vexing issues surrounding free speech. Whether it is children’s books in elementary schools, curricula at colleges, drag queens at libraries, basketball players with anti-Semitic tendencies, we as a people seem puzzled over the parameters of free speech. These issues are at the heart of Megan Phelps-Roper’s “Witch Trials of J.K. Rowling” podcast, which documents attempts to ban Harry Potter books in the early 2000s by zealous Christians and the more recent calls to “cancel” Rowling for questioning certain elements of radical gender ideology. Where do we go to get guidance on this contentious topic of free speech? 

One destination may be Jordi Pujol’s new book. Pujol, associate professor of media ethics and media law at the Pontifical University of Santa Croce in Rome, draws from real world examples such as the Charlie Hebdo controversy of 2015, Nazis marching in Skokie, Illinois in 1978, and legal cases like the Masterpiece Bakeshop case to articulate both an intellectual history and a theoretical model of free speech. 

As I will explain below, Pujol’s presentation is imperfect. While ambitious, the book as a whole is jumbled. Still, while Pujol’s arguments take a fair amount of intellectual mining to unearth, with sufficient work and attention there are jewels to be found. 

Pujol traces a genealogy of free speech, but despite the subtitle’s invocation of “ancient roots” the work concentrates largely on the period from the Enlightenment to the present. To the extent Pujol develops any ancient or medieval conceptions of free speech, drawing from Thomas Aquinas, for example, it is to argue that freedom in ancient sources is not valued as a good in and of itself but rather as a tool to reach the truth. Limits on speech that does not aim at cultivating the true and good are, therefore, acceptable. Granted, as Pujol notes, Aquinas in particular does not believe every transgression must be punished by law. A certain degree of prudence is required. Still, the overall ethos of ancient and medieval times is that public discourse should aim at the true and good, and rhetoric that undermines that aim, either in its content or style, is to be deterred. 

But our conception of free speech tends to be much more influenced by modern thinkers such as Locke and Mill. Pujol spends some time articulating the thought of John Milton, particularly as expressed in Areopagitica, and that of John Stuart Mill. Both thinkers, in their own way, defend a rather broad view of free speech. Milton prods us to “indiscriminately read books.” In Mill, we start to see the rise of “independent freedom” rather than “freedom for good.” Still, contained in the thought of Milton and Mill is a desire for truth. Both tend to think that reading works that challenge one’s assumptions and encountering a wide diversity of ideas helps the individual and the community arrive at a better grasp of the truth. 

Pujol seems to argue, however, that this modern notion, relatively libertarian but dedicated to truth, broke down in the twentieth and now twenty-first centuries. While Milton believed in the true, the good, and the beautiful, we tend to value transgressive behavior for the sake of mere transgression. The postmodern world, with its aggressive nominalism and questioning of any realist metaphysics, casts serious doubt on our ability to inhabit a shared reality. There is no reality, only perspective. 

While early moderns tended to think that a firm notion of reality preceded freedom, postmoderns tend to believe in the freedom to construct one’s own reality. Milton and Mill were friendly toward restrictions on speech that might constitute actual harm. Postmoderns, however, have psychologized the concept of harm, broadening its meaning beyond what Enlightenment thinkers defined as harm. No longer is freedom of speech about the “progress of truth, science, morality, and the arts” but rather about self-expression and “authenticity.” This is why Stanford law students can claim that Judge Duncan’s very presence on campus is a kind of violence. It turns out that “freedom of speech” and “inclusion” are not synonymous. 

While Pujol’s writing is often opaque, one can tease out a kind of positive project from the text. Pujol does not believe that a strict neutrality regarding speech is possible. Modernity’s response to the ancient and medieval connection of religion to the state was to advance a connection of secularism to the state, calling this state of affairs “neutral.” Pujol is quite convincing in showing the falsity of that assumption. He favors the value of pluralism over the will-o’-wisp of neutrality. 

Pujol doesn’t think the state can truly be neutral regarding the “good,” but he does contend that it can, in the vein of Milton and Mill, allow for a variety of voices to aid individuals and society at large pursue the good. He believes that one should be well-formed morally before engaging in a Miltonian program of reading indiscriminately. Pujol, one could say, makes a distinction between reading dangerously and reading promiscuously. 

Pujol is skeptical about a government’s ability to create a priori rules regarding speech. He fears the growth of a free speech bureaucracy patrolling speech. For these reasons, he pronounces an affinity for the American common law tradition over the French code. One gets a sense that Pujol believes limits on speech should be adjudicated in courts, not in legislatures. He regularly argues that speech that constitutes real harm should be punished. What he means by harm is less than clear, although it is clearly something more than mere psychological harm. 

Pujol affirms Raphael Cohen-Almagor’s standards that consider the content of speech, the manner of its expression, and the intent of the speaker to determine “harm.” He also suggests application of linguistic theory. Clearly Pujol is granting wide-ranging power and discretion to judges. It is no accident that Pujol seems attracted to law professor Adrian Vermeule’s activist “common good constitutionalism.” 

To offer an example, Pujol hints that works such as The Da Vinci Code and The Satanic Verses might not pass muster with him. He sees both as crude attacks—on Christianity and Islam respectively—masquerading as art. The Da Vinci Code, for example, manipulates uninformed readers, argues Pujol, by using the average person’s lack of knowledge of early Christianity and church history to undermine the moral authority of the Catholic Church. Dan Brown’s conspiracy story only succeeds if the readers fall for Brown’s historical misrepresentations. While Pujol is not clear on this point, the reader is left with the impression that a book that (under the guise of literature) preys on the reader’s ignorance while maliciously attacking religion might fall under the category of harm. 

Pujol does give some consideration to the problem of speech on social media. He believes that social media companies have shown themselves incapable of self-policing. Scandals emerging from the 2016 presidential election, for example, lead Pujol to conclude that the problem is just too big for any one company to adequately handle. Facebook’s millions of users make it unrealistic that Facebook could ever hire and train enough content moderators to avoid the regular presence of truly harmful material on its platform. The size and worldwide scope of the online world, Pujol believes, calls for some kind of global enforcement. Exactly what such a global mechanism would look like and how it would relate to his disdain for extensive bureaucracy is unclear. 

Overall, Pujol makes some incisive arguments. The book contains some original and provocative thinking regarding free speech. I would be remiss, however, if I did not note that the arguments of the book are presented in a consistently frustrating manner. As I tell my students, if the three most important values in real estate are “location, location, location,” then the three most important aspects of writing are “organization, organization, organization.” The book in question is simply poorly organized. 

Pujol tends to jump from one idea to another without either sufficiently explaining the previous idea or effectively transitioning to the next. The work suffers from engaging a dizzying number of theoretical paradigms, leaving the reader flummoxed as to the book’s central arguments. One admires the vast range of thinkers Pujol draws upon, but he offers them up in a “kitchen sink” manner rather than providing a close analysis of any of them. 

The invocation of yet another theory by yet another theorist leaves the reader needing a scorecard to keep track of authors and arguments. Ideas are often presented in drive-by fashion. Pujol will often simply drop a name (e.g., Robert Nozick or Jurgen Habermas) without much explanation as to how this individual’s contribution adds to his overall project. He briefly, for example, mentions Hannah Arendt and her theory of “action.” This is an important term for Arendt, but Pujol never really explains what Arendt means by action nor how the concept adds to our understanding of free speech. In this sense, the book sometimes reads like a graduate student working overtime to impress his professors with his command of the relevant literature rather than an author making a systematic argument with clarity. The book would benefit from less theory and more explanatory examples. 

The Collapse of Freedom of Expression, while having many keen insights and marshaling impressive scholarship, is too abstruse in presentation to be useful to the average reader. Those invested in the subject of free speech will glean useful perspectives. Within The Collapse of Freedom of Expression is a wonderful book looking to emerge. With effort that book can be found, but only with effort.  

Jon D. Schaff of Professor of Political Science at Northern State University in Aberdeen, South Dakota. He’s the author of Abraham Lincoln’s Statesmanship and the Limits of Liberal Democracy and co-author of Age of Anxiety: Meaning, Identity, and Politics in 21^st Century Film and Literature. 

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