What is Freedom of Speech?

Last week, Miss California Carrie Prejean, who eventually came in second in the annual Miss USA contest, was asked as part of the competition to give her opinion of gay marriage. Her answer was that though she thought it was great that our society has developed to the point that people can choose to love people of the same sex, marriage should nonetheless be reserved for relationships between opposite sex partners. In the above nasty and crudely dishonest video, the questioner makes it plain enough that he voted against her in part because she took the wrong position on this issue.

One blogger has asserted that, however obnoxious his behavior might be, it has nothing to do, as some have claimed it does, with free speech:

Miss Prejean has as much free speech as anyone else in America. She was asked for her opinion, and she gave it. Live on television. If asked again, she could say the same thing. She could sing it from the rooftops, provided she stop before 11pm, lest she cause a noise violation. No one is restricting her speech in any way.

The question of whether or not she lost the crown for her remarks isn't the same as the question of free speech. The Miss USA pageant is an enterprise, not a government body. They may choose whomever they wish. It is up to the judges to decide, on whatever arbitrary grounds they see fit to apply, who wears the Miss USA crown for a year.

I think this reflects two sorts of confusion. First, free speech in our culture is generally not understood as a matter of being able to speak (positive freedom) but of not being punished or penalized if you do (negative freedom). By this blogger's logic, the only penalty that would abridge my freedom of speech would be execution. After all, as long as I am left alive, I am able (though perhaps in a prison cell and under the threat of further punishments) to shout out my opinion. Free speech, I say, is a matter of speaking without fear of being punished. It is not about whether I have the capacity to speak if I don't mind paying the penalty.

The second confusion is in assuming that free speech is a mere matter of governmental arrangements. Arguably, this is true of the right of free speech, but free speech and speaking freely are broader than that. Indeed, free speech probably cannot survive in a society in which people think of it in such a narrow way.

As John Stuart Mill pointed out in 1859, free speech advances our understanding of the world and constantly improves our ideas about it. Governmental arrangements like the First Amendment serve these vital functions as part of a wider social system of ideas and practices that protect speech. Mill went so far as to say that we ought never to judge the content of what someone says as immoral unless it is directly harmful to someone else. He reasoned that the threat of the sting of our disapproval penalizes expression in fundamentally the same way that legal punishments do. This may be going too far, but I would say that at least we should not go out of our way to penalize someone for the offense that Orwell called "crimethink." This ought to me mere good manners.

Without such standards of civility, the narrowly legal institutions of free speech will not really do what they are supposed to do. In fact, without and the appreciation for liberty that supports such standards, the legal arrangements may not even be around much longer.