The “free speech” debate is both exhausting and frustrating. You sometimes get sucked into it and then, hours later, you are wondering how this happened and where the exit doors are. Somehow, no headway has been made in the discussion and both sides seem to have become further entrenched behind their point of view. One reason for this unhappy ‘end-of-the-road’ and ‘lets-part-ways’ circumstance is that the premise upon which the free speech debate rests is fundamentally unhelpful. What the free speech debate is built upon is the combination of a) the autonomous, independent, and self-governing individual – a staple of western liberal thought – who, b) in order to live out his or her freedom, needs to be protected from all other individuals and the state. This is the classic negative rights paradigm, or the idea that rights are there to protect us from outside interference in order for us to get on with the business of living our autonomous lives as we damn well please.
The free speech debate becomes, based on this paradigm, a zero-sum game. Since my rights end where your rights begin, we keep struggling for whatever middle-ground we think we deserve or that our society should uphold; a matter of justice. What this means in a society that venerates free speech as a fundamental freedom is that free speech is permitted up to the point of inciting violence or death. Here we have agreed to draw the line. Grudgingly, “we” have accepted that where speech can or does link directly to violence, it has ‘gone too far;’ a concession perhaps to minority groups who tend to bear the burden of weaponized words or thought. Liberals maintain that free speech should be protected in order for ideas to be exposed to the “light of day,” – sanitized, perhaps – in order that they may be debated and, if need be, discredited. Nothing is allowed to fester in the dark and become larger, more entrenched, and onerous.
Idealistically, many believe that even very dangerous ideas can, through this process, be delegitimized and become, thereby, less dangerous, being tossed into the lower drawers of society’s repertoire of thought. In criticism of this point, one may argue, however, that reason is insufficient or incapable of combatting what has become a matter of expressing not an idea to be debated, but an opinion of an ideologically united “special interest group” that is less interested in debating ideas than pursuing an agenda rooted often in strong emotions, a sense of entitlement, resentment, righteous anger, etc. Reason, fails, again and again. What is desired, by such a group, is a “platform” to spread their message, not by speaking to the reasoning and rational listener, but to an audience driven by narrow meaning seeking and exclusionary ideology-based sentiments. It’s a matter of belonging, having a shared purpose or grievance, and “feeling together.” Populism based outrage – the little guy outraged by the bureaucratic machine, inflected often by racism and xenophobia, is not interested in reasoning offered by “the other side.” It’s a matter of “winning the war,” of “regaining control,” of “getting the ‘other’ out.”
As Aaron Mills suggests in his article, What is a Treaty?, this is an example of contractarianism. In a nutshell, a society based upon contracts is a society of autonomous individuals that relate only through contract. The contract lays out the rights and obligations they, the parties to the contract, have with respect to each other. A contract should, ideally, remain constant, and when breached, should come with a mechanism to enforce compliance of the terms or, if this is inadequate, provide for remedies. The enforcer in this picture tends to be the state; freedom of speech a term of the contract. Anyone not party to this “contract” is of no concern; they are, simply, as Mills puts it, “everyone else.” Since they are not party to the contract, we don’t have any obligations to them, and they have no rights that they can claim and force us to respect. Interestingly, this sets up a picture where relationship is conceptualized in a very narrow and legalistic fashion. We relate only through contract. The ideology of the autonomous individual enforces contractual thinking, and vice versa. Contract thus becomes normalized and fades into the reigning background cultural assumption of our society.
As Mills puts it, “given enough time we cease noticing the binds of the contract against us. They become just another aspect of the world around us: water flowing, grass growing, sun shining, contract binding. Contract has slipped into the nothingness of the day; it is as if it always were. And so, a challenge to contract today has become a provocation of the sacred to be met with righteous condemnation, contract now mistaken as part of creation’s order.” In other words, free speech is sacralised, the presumptions underlying its premise never challenged. Since most of us operate from within this premise, we get sucked into a debate we might feel very uncomfortable having. And yet, deviating from the script is hard and we may not know how, sensing all the while, however, that something better is out there; another perspective that would end this tit-for-tat power struggle over what should or should not constitute the middle ground.
Mills provides us with one such perspective that comes from an Indigenous (Anishinaabe) constitutionalism rooted in treaty, specifically the Niagara Treaty of 1764. This treaty, he argues is “our (that is, indigenous and British-become-Canadian) commitment to a relationship based in practises of mutual aid, oriented towards harmony.” Fundamentally, we have always been in relationships and are ontologically committed to each other in the sense that we all depend on each other; nothing living lives alone. Rather, life is a network or web of relationships that depend on each other. Cut the links and things unravel to the point of death. Even the most self-sufficient individual could not survive absent the myriad of relationships.
What this suggests for our free speech dilemma is that one way to disentangle ourselves from the grasp of an alienating and exhausting conversation is to shift the script. Rather than debating the limits of speech, we might consider having conversations about “right” speech, a speech that comes from the acknowledgment of (right) relationship(s) beyond contract, built on an ontological and existential fact, something we all share. We might then speak not so much the language of “me … me … me” but the language of mutual aid, responsibility, and care. When in a relationship, my actions must not always be self-referential and self/inward directed. Rather, I am called to act as if the other person mattered. No longer am I seeking justice for myself, but rather, hoping to contribute to a larger harmony that orients me “well” to others and the broader community. This can only happen, however, if relationship and interdependence become the names of the game.
The circle/healing group illustrates my point. In such groups, participants are often asked to speak honestly, directly, and to ‘get it all out on the table’ to the point of looking another person in the eyes and confessing that “there were times when I was so angry with you that I felt like I wanted to kill you.” Difficult and complex emotions surface and things are said that, from a free speech paradigm, are not so ‘savory.’ In fact, they might otherwise be sanctioned. And yet, in the group, they are necessary and not toxic. The reason why such statements/emotions, such forms of expression, are welcome is that, while they may be difficult, they are grounded in relationship. Contractarianism has no place. The group comes together to heal individually and collectively; they know that their healing journey is entangled with that of the other, with that of the group. With sufficient preliminary work being done, the group is held in a crucible of good faith. ‘We speak not to hurt but to heal and mend.’ A relationship of trust commits them to sit in the fire, together, and listen and speak right. This is not a matter of justice. Nobody will win by themselves. Harmony is the mending of hurt and alienation; a confirmation that contractarianism in its various guises has been the problem and will not be provided oxygen here.
The point is, to repeat it, that absent the holding container of right relationship, free speech debates will be zero-sum. To go even further, a right relationship paradigm has no use for the free speech debate. Speech is never “free” but is uttered in relationship. Relationship acknowledges responsibility and differently situated knowledges and capacities to speak. From a relationship perspective we become sensitive to power differences because the point of right and harmonious relationships is to equalize power among us. We also become sensitive to the fact that the capacity to speak is unequally distributed, both in the sense of innate ability as well as systemic inequality.
One problem of the free speech contractarianism perspective is that it presumes sameness. Everyone is that autonomous rational individual, normed after, as history has shown us, the white male propertied and able-bodied liberal western person. This, of course, is not the case, and yet many conversations around free speech from a contract perspective are either oblivious, dismissive or hostile to this view, particularly since inequality implies a wrong-doer and a wronged party. Little agreement can be found and almost every group is able to claim that they are the rightfully aggrieved party; even the white male is now victimized, so it is argued. Parties entrench. The debate also finds no common ground. Powerful individuals insist on sameness, arguing that speech is equally available to all, regardless of who they are. Marginalized groups insist that speech has never been free and may insist that, in order to restore balance, limits are placed on the powerful group; these limits are, of course, categorically rejected.
The discourse can also be influenced by a more liberal ‘yes, we accept that you have had a difficult history and that we may have had something to do with this, but, enough already with the guilt trip. Let’s reboot. We are sick of being made to feel guilty. A bright future is ahead if you were to let go of the past, reconcile yourself to pragmatic politics, and come meet us, forgive us, and allow us to direct our energies towards the more productive business future making.’ Guilt becomes weaponized and a means to claim woundedness. ‘You are making me feel guilty and this is hurting me; in being hurt, I now feel entitled to a remedy, an injunction, reprieve.’ I blame you and your protest against injustice is dismissed and conveniently repackaged. Guilt is not productive, in this sense. It kills, breeds resentment, anger, and becomes a centrifugal force; relationships fall apart.
The discourse must then, for numerous reasons, shift. Something must give. Aaron Mills’ view on right relationships and practices of mutual care provide us with a way out, a different vantage point. It now becomes a matter of taking this view seriously, testing it out, and seeing where it might take us, what opportunities and avenues for being together it might open up.