I write in reaction to Elena Louisa Lange’s article in these pages, in which she evokes Karl Popper’s free speech paradox, to argue, with reference to the case of Mahmoud Khalil, that it is right and logical to suppress intolerant speech, in order to preserve free speech.
I will not respond point by point to Elena’s article (although I note in passing that her claim that the Red Cross has “never earnestly tried to reach” hostage Edan Alexander does not appear to be accurate). Nor shall I discuss the allegations of Mr Khalil’s misconduct beyond speech: as with so many matters that can be placed under the heading “Israel-Palestine”, this would lead into an impenetrable morass of mutually conflicting partisan narratives. Rather, I shall seek to focus on the primary question of tolerance for intolerant speech.
It must be allowed at the outset that the problem outlined by Popper is not trivial. There is a contradiction, or at least a painful tension, in the claim that freedom of speech ought to extend to speech promoting intolerance, or, worse still, promoting an end to freedom of speech. Ought we not simply to eject from the tree the man seeking to saw off the branch we are all sitting on?
One might here respond that the legal and cultural enshrinement of free speech is predicated on the supposed ability of the citizen body, in unfettered dispute, to find its way towards better ideas: accordingly, intolerance and even violence-promoting speech can safely be allowed because, as believers in free speech, we are confident it will be defeated. Indeed, if citizens cannot be trusted to resolve these debates the right way on their own, why ought they be granted free speech at all? Or, to put this more pessimistically, if we cannot debate our way out of intolerance without government help, then perhaps we do not deserve free speech, and we shall be duly deprived of it when the intolerant win the debate.
The enshrinement of free speech is predicated on the supposed ability of the citizen body to find its way towards better ideas: accordingly, intolerance and even violence-promoting speech can safely be allowed because, as believers in free speech, we are confident it will be defeated.
In Mr Khalil’s case, the difficulty seemingly can be resolved—as the US administration is proposing to do—by pointing out that he is not a citizen, and simply deporting him. We could then justify this as part of a model whereby free speech can only be entrusted to those educated into a certain form of citizenship, and no polity can assume that those raised outside its borders have received that education. Any non-citizen within such a polity can then be seen as granted free speech only on sufferance, and as standing in line for exile as soon as he falls foul of the Popperian rule.
This however points to the most obvious problem with restricting the boundaries of free speech: such restriction always entails expanding in turn the domain of government power. Deporting Mr Khalil would be a novel exercise of such power, nor, within the framework posed by Popper, is there is any reason why restrictions on intolerant speech must only apply to non-citizens. For we cannot seriously expect that any polity will succeed in raising every single one of its citizens to cherish tolerance. Accordingly, as we seek to enact Popper’s intolerance of intolerance through legislation and enforcement, we will be variously repressing internally citizens who cannot be exiled.
In practice, as we move the limit of which speech is to be censored beyond such minimal restrictions as those inciting immediate violence or crime, we simultaneously extend the space where state power can be exercised arbitrarily or for the benefit of whoever has the ear of the powerful. To ban intolerant speech will require a definition of intolerance, and intolerance is a flexible and expandable concept. There is thus, for instance, little formal difference between the arguments deployed in favour of restricting speech opposed to “transgender rights” and those in favour of restricting the speech of campus protesters against Israel. To be sure, advocates in each case argue that their exception is the justified one: but this only means that the government must be trusted to adjudicate. We thus end up handing back to the government some portion of those powers that the very notion of a right to free speech implies that governments ought not to have.
We end up handing back to the government some portion of those powers that the very notion of a right to free speech implies that governments ought not to have.
I believe these concerns ought to weigh heavily against any case for banning intolerant speech. I do not however maintain that they are conclusive, because I do not think there is a single, correct solution to the problem posed by Popper. Rather, I suggest that there are limits to how much light can be shed by discussing this problem in universal, decontextualized terms. Neither free speech nor censorship exist in the abstract: they always consist of norms and practices located within a given society and its history. No amount of legislation based on first principles can obviate that, because every codified limit set on free speech, and every interpretation of that limit by citizens, judges and officers of the law, will be molded by the society in which the laws and practices are situated. The question “what constitutes immediate incitement to violence?” is perhaps more straightforwardly answered than “what constitutes intolerance?”, but neither admits of a universal, ahistorical answer.
Accordingly, I will return here to the specific case of Mahmoud Khalil, and outline three elements that I believe make the US government’s actions against his speech blameworthy (I emphasize here once again that I am discussing only the speech aspect of his case—whether Mr Khalil lied on his visa application, or committed criminal property damage etc. are separate matters).
The first concern is that Mr Khalil’s case is unfolding in the United States, which has its own free speech tradition, as developed through First Amendment jurisprudence. The First Amendment’s provision that “Congress shall make no law abridging the freedom of speech” was originally understood not as an overall ban on government censorship, but as one leaving censorship powers to the states. However, in 20th and 21st century jurisprudence, the Amendment has been gradually interpreted more widely. The question of whether this interpretation is in line with its original intent is academic: the reading of the First Amendment as a ban on government censorship is now enshrined in American tradition.
A certain sort of American patriot believes not only (as patriots are wont to do) in the superiority of his tradition to those of other nations, but in the need to export it. This seems to me simple-minded. For instance, I am not prepared to claim that, when nations such as Germany or Rwanda sought to make peace with their sins, and avoid their repetition, they were wrong to impose wider speech restrictions than those embraced by Americans. However, I then maintain that the converse also holds. America has a fine, messy tradition of allowing a great range of obnoxious, racist, hateful and cretinous speech, emphatically including deranged antisemitism. I do not think it is wise or patriotic to tamper with this tradition, however much Mr Khalil’s beliefs or words may be worthy of the most severe revulsion. Why not trust Americans to ignore him or laugh at him to scorn? Even if this account of the American model is somewhat mythical, this is a myth best fostered, not debunked.
I do not think it is wise or patriotic to tamper with the tradition, however much Mr Khalil’s beliefs or words may be worthy of the most severe revulsion. Why not trust Americans to ignore him or laugh at him to scorn? Even if this account of the American model is somewhat mythical, this is a myth best fostered, not debunked.
Secondly, Mr Khalil is an immigrant, and indeed the government’s case against him appears to rely substantially on the claim that First Amendment rights do not extend fully to immigrants. I am not competent to comment on this as a matter of law, other than to reiterate my point above: the understanding of the law is not absolute or abstract, but socially and historically conditioned. My position is then aligned with that set out by Gregory Conti: I believe that the most desirable reading of the First Amendment is one that expands its protections as far as possible to immigrants. To read the law otherwise is to build up the edifice of a two-tier society, one that risks becoming (at best) a liberal polity for citizens, and a punitive surveillance state for immigrants. Any country with a substantial immigrant population will always, to an extent, have a hierarchy of rights, because no society treats strangers quite the same as natives. However, the wider this gap is allowed to grow, the less that society as a whole will look like a liberal polity, and the more it will become a caste society.
This is very far from the American dream, and nor will America resolve this problem by “ending immigration”. We may indeed be entering an era of reduced immigration to the US, but immigration will not shrink to such an extent that severe curtailments of the speech rights of immigrants would be but a minimal stain on the overall complexion of the American polity. Accordingly, I maintain that the very reason that some are at ease with the curtailment of Mr Khalil’s speech—that he is not an American—is in fact a central reason why he ought not to be punished for any intolerant political utterances that would be legal in the mouth of an American.
Lastly, arguments for deporting Mr Khalil invariably involve claims that his speech is antisemitic. Indeed, it appears that the US government will rely on its stated dedication to “combating antisemitism around the world” in order to argue for Mr Khalil’s deportation on the grounds that his “presence or activities in the United States would have serious adverse foreign policy consequences for the United States”. Now, I do not know whether Mr Khalil is an antisemite—certainly there is antisemitism within the nominally “pro-Palestine” movement, and seeking to point out and condemn this antisemitism is both just and civically responsible. However, antisemitism thrives inter alia on the notion that Jews exercise vast occult power over societies. In this regard, I fear it will be highly imprudent to devise a novel limit to the First Amendment specifically on the basis of fighting antisemitism. Khalil-type deportations will embolden antisemites in their suspicions, and this, if we follow the Popperian precept, will lead to more sanctions and restriction on speech, which will then further encourage antisemites’ fear and hatred. And so on.
This is an escalation which I think Americans had best escape by hewing to their tradition of letting obnoxious idiots speak their obnoxious idiocy. If Mr Khalil is such an idiot, the best American way is not to jail or deport him for that, but to repeat the hoary national adage, “it’s a free country”, and go listen to someone more interesting.
