I am by nomeans a free speech absolutist.  In an article atPostliberal Order a coupleof years ago, I set out the natural law position on the issue, noting that theteleology or final cause of our rational and communicative faculties entailsnot only a broad range of freedom of expression, but also definite limits.  There can be no natural right to expressionthat is positively contrary to whatis good for us given our nature as rational social animals.  However, that by no means entails that justany old limitation on free speech imposed in the name of a good cause is a goodidea, or even justifiable in principle.

I won’trepeat here everything I said in the earlier article, but the relevantprinciples are as follows.  Naturalrights, in general, exist for the purpose of facilitating the realization ofthe ends toward which our nature directs us. In the case of our rational and communicative powers, that end is thediscovery and dissemination of what is true and good.  We have a natural right to speech thatfacilitates this end.  And while thatentails that there is no right to express erroneous or bad ideas as such, it nevertheless does allow fora wide range of freedom to express even ideas that happen to be erroneous or bad. The reason is that, given the limitations on our cognitive powers, weare bound to fall into error sometimes, and the normal means of correctingthese errors is the give and take of discussion and debate.  Furthermore, those who would censor erroneousand bad ideas are (since they are no less human than anyone else) themselves prone to error, and thereforemay end up censoring true and good ideas.

There is apresumption, then, in favor of free expression, precisely because itfacilitates the natural end of our rational powers.  However, not all forms of expression areprotected by this presumption, because not all forms of expression haveanything to do with our rational powers. For example, pornography does not appeal to our rationality and in noway contributes to discovering truth or to debate by which we might root outerror.  It appeals instead to ourappetites, and in a way that corrupts them. In particular, it fosters and even habituates sexual desire that isdisordered in its intensity and its objects. It thereby corrupts sexual morals, and thereby weakens the institutionof the family, the foundation of all social order.  Accordingly, pornography is in no wayprotected by the natural right to free speech.

There arealso ideas which not only happen to be erroneous or bad, but have a tendency positively to frustrate the pursuit oftruth and the living of good lives. Examples would be views that deny the very reality of truth or goodnessas objective features of the world. Since the purpose of the right to free expression is to safeguard thepursuit and dissemination of what is true and good, it can hardly protectspeech that denies the very reality of the true and the good.  Hence there can be no natural right topromote such ideas.  There may undercertain circumstances be good prudential reasons to tolerate them, but not because suppressing them would be inherentlyunjust.

The case for (certain kinds of)censorship

Which formsof expression should the state prohibit, then? To start with the least controversial examples, it should prohibit libelousand slanderous speech, and speech that directly incites violence against someindividual or group.  

Thatpornography should be outlawed is now a more controversial claim than it usedto be, but it should not be controversial. From a natural law point of view, this is not a difficult case atall.  Pornography should simply bebanned.  To be sure, there are materialsconcerning which one can make a case for toleration (for example, novels ormainstream movies that are not pornographic works but do have salaciouscontent).  But this is not so where straightforwardlypornographic materials are concerned. (Naturally, the argument for this claim presupposes the general naturallaw account of sexual morality.  I’maware that not every reader will accept that account, but my point is that ifone accepts it, together with the natural law account of the foundations ofnatural rights, the case for outlawing pornography is obvious.  I’ve defended the natural law approach tosexual morality inother writings.)

In aforthcoming article at Postliberal Order,I argue that governments have a right under natural law to prohibit flagburning, understood as a public expression of contempt for one’s country.  On the one hand, such a prohibition in no wayfrustrates expression of or debate about any idea (since any idea that could beexpressed by burning the flag could be expressed instead in words).  And on the other hand, showing such publiccontempt for one’s country offends against the virtue of piety, and candestabilize the social order by encouraging others to have a similarcontempt.  But whether a particulargovernment should actually exerciseits natural right to ban this particular form of expression is a matter forprudential judgment and depends on circumstances.

What aboutthe expression of ideas that positively frustrate the pursuit of what is trueor good?  Here the clearest cases concerncontexts where such ideas might influence the young – who, because they aremore ignorant and inexperienced, and governed more by feeling than reason, areleast likely to be able to see what is wrong with such ideas.  Hence, consider cognitive or moral relativisttheories that deny the reality of truth or goodness as objective features ofthe world.  Or consider theories that areinherently subversive of the social order and pit one group against another,such as Nazism, Marxism, and Critical Race Theory.  Or theories which promote gravely disorderedsexual desires, and thus inculcate sexual vice in the young and destabilize thefamily.  It is simply common sense thatthere cannot be a right to teach such ideas to young people, such as highschoolers (let alone even younger children). The state may and ought to prohibit the dissemination of such ideas inprimary and secondary education.

Things aremore complicated where higher education is concerned.  Certainly the state should in no way andunder no circumstances actively promotesuch evil ideas in any context, including higher education.  But what about merely tolerating them?  Here thereis no “one size fits all” answer, and much depends on the judgment ofprudence.  There can be specialcircumstances where the state has an interest in rooting out such ideas.  For example, you would not want to toleratehaving many Critical Race Theorists on the faculties of the military academies,because their ideas are positively subversive of allegiance to the country thatwarriors are supposed to be protecting. 

The case against (other kinds of)censorship

But policingacademia in general is much trickier.  Governmentregulators are highly unlikely to be sufficiently good judges of ideas, giventhe people who would be appointing them. Liberal politicians tend to be suckers for every idiotic academic fadthat comes down the pike, while conservative politicians tend to be philistines. Any regulation of academic discussioncoming from either left-wing flakes or right-wing yahoos would be ham-handed atbest and do much more harm than good. Hence in a university context it is, in general, best to combaterroneous ideas through the give and take of free debate.

Somethingsimilar can be said of public debate in the world beyond academia, especiallyin a pluralistic society like the U.S. whose constitution and political culturehave long idealized the free exchange of ideas (even if, in practice, notalways doing so consistently or well).  Whenit comes to bad ideas concerning political philosophy, public policy, and thelike (as opposed to defamatory speech, incitement to violence, pornographic expression,and the like), it is better to fight them through the give and take of debaterather than through censorship. 

The COVID-19pandemic vividly illustrated how dangerous it can be for even intelligent andwell-informed people with good intentions to try to police such speech.  One side tried, in the name of public health,to shout down critical discussion of policies that imposed severe costs onmillions yet whose scientific and moral justifiability was far fromcertain.  The other side, rightly alarmedat this, overreacted by too willingly embracing crackpot medical ideas andconspiracy theories.  The first side thencondemned this overreaction, arrogantly oblivious to its own responsibility forcausing it.

In thiscase, preemptively shutting down debate was especially unreasonable given howpoorly understood the virus was at first, and how draconian and untested werethe methods employed for dealing with it. But even in the case of matters that are very well understood, it isgenerally a bad idea to try to suppress dissent by force of law.  Human beings are, by nature, rational animals.  True, they very commonly use their rationalpowers badly, and are prone to all sorts of error and irrational thinking.  But because they are rational animals, they are,naturally, prone to accept ideas only when they can see why they are reasonableand have a choice about whether to embrace them.  They do not react well to having forced on them ideas they don’tunderstand or agree with, even when those ideas happen to be correct and resistanceto them is unreasonable.  For the sake ofsocial harmony, then, there is a strong presumption against censoring public discussionand debate over matters of policy, political philosophy, and the like.

In theory,there are cases where this presumption can be overridden.  But I would suggest that a necessary conditionfor such censorship is that it meets all of the following criteria:

1. It should concern expression that isinherently contrary to the common good, and in particular that attacks theprerequisites of living together as a community of rational animals.

Again, Iwould argue that examples of expression that meet this condition include: libelousor slanderous speech; the incitement of violence against particular individualsor groups; pornographic expression; direct assaults on the virtue of piety,such as public actions intended to foster contempt for one’s country; ideasthat challenge the very reality of truth or goodness; and ideologies thatpromote social conflict by demonizing entire groups of human beings, or which directlypromote grave vices such as sexual immorality. (This list is meant to be illustrative, not exhaustive.)  As I have said, there may be pragmaticreasons why a government should tolerate such errors, but it cannot be wrong inprinciple to suppress them.

Now, thepoint is that these sorts of expression are directassaults on the good of individuals and societies.  Defamatory speech, by destroying one’sreputation, can make it extremely difficult or impossible to engage in everydaysocial life (by securing employment, for example).  This is even more obviously true of speechthat causes others to live under the threat of violence.  A culture that is so awash in pornographythat even children have easy access to it will inevitably inculcate widespreadand deeply ingrained sexual vice, which is contrary to both our social nature(since it destabilizes the family) and our rational nature (given that, asAquinas teaches, sexual vice has an even greater tendency than other vices doto blind the intellect).  Theproliferation of ideas that promote hatred of one’s country or of large groupsof one’s fellow citizens radically undermines social harmony.  And so on.

Contrastthese examples with the following: disagreements over particular policyproposals (concerning taxation, immigration, health care policy, foreignpolicy, or the like); disagreement with or dislike of some particularindividual politician or political party; disagreements about particular moralissues or matters of political philosophy (of the kind that always inevitablyarise in political debate, journals of opinion, the classroom, etc.); disagreementsabout particular matters of empirical fact, concerning current events, history,science, etc.; and so on.

These sortsof disagreements, even when heated, are a normal part of social and politicallife and in no way intrinsically atodds with the good of individuals or societies. And even when erroneous opinions about such matters result from outrightdeception or intellectual dishonesty, they rarely strike at the very roots ofthe social order.  Moreover, it is in anycase simply unrealistic to suppose that government can, in general, effectivelyseparate such lies out from the honest mistakes and exaggerations human beingsare commonly prone to.  Hence these arematters where government should notinterfere with speech, but rather let error be corrected via the give and takeof free debate.

2. It should clearly be motivated by service to the common good, rather thanthe narrow interests of some particular party or leader.

The pointhere is that it is not good enough for a policy of censorship actually to havesound reasons in its favor.  It must be motivated by those reasons, and bewidely perceived as having such a motivation. Even the best policy is likely to backfire if it is widely perceived tobe motivated instead by corruption or a personal grudge on the part of someleader, or by an attempt by one party or ideology to silence reasonable dissent.

This doesnot mean that every single citizen has to think the policy has a goodmotivation.  That would, of course, be anunrealistically stringent standard.  Buta critical mass of the population has to be able to see it that way.  Think of the way that, in wartime, the bulkof the population often gives the government the benefit of the doubt wherecertain censorship is concerned, because it knows that certain matters have tobe kept secret for the sake of national security.  Certainly this was true in the days of WorldWar II, for example. 

Of course, thingsare different now, and distrust of governmental authority is much higher.  But that makes it even more important (not less) for a critical mass of the population tobe able to believe that a censorship policy is at least intended to serve the common good rather than some narrow personalor partisan interest.  From the point ofview of natural law, the whole point of suppressing certain kinds of expressionis to preserve the social order and the common good.  Hence a policy that will, in practice, tendonly further to divide an already highly polarized society can hardly bejustified on natural law grounds.

For thesereasons, even when a policy of censorship has good arguments in its favor, itshould in general not be pursued except by leaders known for the utmost probityand statesmanship.  Otherwise it islikely to do more harm than good.

3. It should be calmly and carefullythought out, not impulsive.

Censorship,like war, is so grave in its consequences that even when it is justifiable, itshould never be resorted to lightly.  Hence,a policy of censorship should never be implemented except after careful and dispassionatestudy.  Major events that trigger strongemotions (such as the rapid spread of COVID-19 in early 2020 and the recentassassination of Charlie Kirk) often lead to calls for censorship.  But censorship policies proposed under suchcircumstances are the least likely tobe justifiable, because they result more from emotion than reason.

4. It should as far as possible beimplemented in general rules, rather than in ad hoc directives or otherexercises of discretionary power.

This conditionis a corollary of the second and third conditions.  Where some individual or agency has arbitrarypower to censor speech, it is far more likely that such censorship will resultfrom the passions of the moment than careful and dispassionate analysis, andthat it will reflect personal or partisan interests rather than be directed tothe common good.  There is also theconsideration that social order requires predictability, and thus the rule oflaw rather than governance by whim.

In light ofthese criteria, what should we think of recent Trump administration policiesthat have been characterized as exercises in censorship?  The answer is that it depends on whichpolicies we are talking about.  In thecase of eliminating federal funding for DEI programs, rooting “woke” ideologiesout of the military academies, and the like, I would say that these measuresare all justifiable.  One might quibbleover details of implementation, but the basic policies are sound, because theseideas are poisonous and divisive and should have no influence on, or supportfrom, government.  

But thingsare very different with some of what has been said and done over the lastcouple of weeks, in the aftermath of Charlie Kirk’s assassination.  Attorney General Pam Bondi has spoken of“going after” those who engage in vaguely defined “hate speech,” and of prosecutingprinting businesses that refuse to print Charlie Kirk posters.  While ABC was in my view correctto suspend Jimmy Kimmel for an unjust and inflammatory remark, it did so in partunder threat from FCC chairman Brendan Carr, whose action hasbeen compared by Republican Senator Ted Cruz to that of a mafia boss.  President Trump has suggested that becausethe negative press coverage he has received is in his view excessive, it is “nolonger free speech” and “illegal.” 

Theseremarks and actions are foolish and irresponsible.  They are bad in themselves, because theyclearly do not meet the criteria set out in 1- 4 above.  They also threaten to discredit the goodthings the Trump administration is doing, because they give its enemiesammunition by lending plausibility in the public mind to the tiresome charge of“fascism.” 

Defenders ofthe administration will point out that left-wingers who promoted “cancelculture,” cheered Trump’s being kicked off of social media, suppressed speechduring the pandemic, etc. have little standing to complain.  That is correct.  But it is also irrelevant.  It’s a cliché to say that two wrongs don’tmake a right, but it is also true. Statesmanship requires doing whatever possible to repair social divisions,not exacerbating them further in the interests of getting revenge on those whofirst caused them.