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Legislation of Liberal Discourse

Ever since I wrote the rather polemical blog post Whose Speech and For Whom four years ago I have been receiving, whenever it is reshared each year, complaints from people amongst the left who really want to preserve the liberal notion of free speech and completely misunderstand the motivation of the post in question.  Of course it doesn't help that this post is taken for some kind of total legislation against free speech/expression by those who have a monolithic conception of capitalism, but this is only a secondary problem considering that the offended parties, if they bothered to really read this article and similar ones, wouldn't be writing me asinine complaints about how I don't understand the importance of free speech.  How I am undermining the very existence of this blog by supposedly claiming I have no right to freely complain about free speech when I am freely speaking. How I benefit from free speech.  And etc.

At this point I'm becoming rather annoyed by the random free speech warriors who wander onto this blog several times each year to teach me profound lessons about the meaning of free speech when it is quite clear they can't be bothered to think through: a) what i'm precisely arguing; b) their own assumptions about the convention of free speech.  No I am not arguing for the complete authoritarian legislation of thought; yes I am challenging your common sense understanding of the concept that you haven't really thought through.

My argument has always been two-fold: there is no freedom of thought/expression that exists outside of class struggle; freedom is not reducible to thought/expression.  In this context I have maintained the following: a) the freedom of thought/expression maintained by capitalist societies is only possible if one accepts bourgeois class hegemony as common sense, and all thought/expression that challenges this will be relegated to a minoritarian trend; b) a proper understanding of freedom is not about abiding by the regulation of thought/expression but by challenging the very basis upon which a particular thought/expression legislates meaning.

Yes, conditions do apply.  Especially if they are graffitied with style.

1: Legislating Freedom and Harm

When I say legislates I mean precisely this: the ideology of freedom of speech/expression that is upheld by liberals is a form of legislation in that it permits freedom only within the realm of speech/expression while forbidding it from class struggle itself.  Again, as I continue to emphasize in all of these controversial posts (but none of the unreflective critics bother to think through), J.S. Mill's limitation of his harm principle demonstrates the limitations of bourgeois free speech as a convention that also legislates against the freedom of the oppressed classes.  The corn-dealer example: you can publish tracts about exploitation, complain about it to others, but you can't do so in front of the exploiters house––that is, you can't try to exercise the freedom of revolutionary confrontation but only the freedom of radical speech.  This bourgeois notion of freedom of expression/speech is locked into expression/speech itself; it permits no freedom beyond speech because such a freedom would violate the harm principle and, possibly, reorient us in the direction of the Hobbesian state of nature.

Let me emphasize this fact: the bourgeois notion of freedom of speech/expression is in itself a legislation against freedom.  This is not simply a philosophical point; it is rearticulated, over and over, according to liberal practice.  Why is it that the ACLU defends the right of fascists to express themselves over the right of anti-fascists, on the ground, to freely attack these same fascists with baseball bats?  Because they believe that the freedom of speech without action is the highest good, even if it is reactionary, and comfort themselves with irrational myths about how American society experienced any sort of progression because of freedom of speech––the freedom of debate without action, of ideas without practice––and not because of practical liberation.  According to ACLU apparatchiks (like Nadine Strossen) segregation ended because of freedom of speech––not because of tens of thousands of racialized bodies facing dogs and firehoses, of arming themselves and murdering KKK lynchers.

So when a militant anti-fascist confronts someone in the KKK, or PEGIDA, or the JDL, or some MRA group, what is going on?  The liberal, if they are honest, can only conceptualize this phenomena according to a negation of freedom because these are situations in which militants are mobilizing to prevent people from exercising their free expression: the corn-dealer example is clear––write your tracts privately, see if you can get a publisher, but don't mobilize––this is a violation of the harm principle where the fascists are placed in the way of harm.  But what about the freedom of action to confront reactionary ideas and shut them down?  This kind of freedom of expression only matters within a socialist context and it is the one we should embrace: the freedom of the masses to say "fuck you" to fascist assholes and reeducate them baseball bats––why is that worse than the right of some KKK toady to speak his mind and encourage racist lynching?  Well, according to the liberal it's neither better or worse but simply an equalization… And this, as Anatole France recognized a long time ago, is the point: "In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread."  Marx, of course, made a similar point when, in the first volume of Capital, he spoke of the way right was balanced against right so that greater force mediated between equal rights.

Between the freedom of the fascist to speak their mind and the freedom of the anti-fascist to violate the harm principle by attacking the fascist from speaking their mind, what legislates morality?  The bourgeois conception of freedom is one such legislation because it claims acts cannot be as free as words and thus, because of this, the fascist is given free reign and the anti-fascist condemned for trying to prevent them from existing as a moral subject.  Bourgeois freedom of speech/expression functions to legislate on the side of the bourgeois state of affairs; this is precisely what I mean, and have always meant, when I demand that we stop thinking about "free speech" and "free expression" as abstract goods but, instead, as claims that are always made according to particular class moralities.

Hence, in Democratic Society and Human Needs, Jeff Noonan argues that this liberal notion of freedom (which is reducible to "liberty"), and thus the "rights" discourse, is premised on the tearing apart of the political and economic spheres.  The exercise of an individual's freedom is understood as something that functions only in the political sphere (from suffrage, to freedom of speech/expression, to the right not to be beaten up for no reason), whereas the economic sphere is left to the "freedom" of market forces.  Thus, it is not a violation of one's freedom to pay for food, water, and shelter; one is not "harmed" by anything but their own free choices if they are pauperized; according to this ideology we are only unfree when we face a violation of the harm principle.  Back to the corn-dealer example, upon which all of On Liberty's understanding of morality pivots: the people gathered outside of the corn-dealer's house may have been "starved" by the laws he helped inact, but they were not directly harmed by the corn-dealer as a political subject––he did not, according to this logic, invade their homes, force them to abide by his decisions by putting a knife to their throats or tying them up.  On the other hand, they are guilty of violating his freedom because their actions are tantamount to encouraging direct, bodily harm upon a political subject.

Here, claims about the sanctity of freedom of speech/expression fall short of the standard of freedom I believe socialists should pursue: something that goes beyond political right, deals with the economic sphere, and recognizes that a richer freedom may in fact be accomplished by violating the harm principle in those instances where it legislates impoverishment and the deprivation of human needs. If one chooses to violate the harm principle in the pursuit of liberation (i.e. harming the members of a ruling class in the interests of the needs of the masses) then the limits imposed by the bourgeois notion of freedom of speech/expression––and of liberty in general––will be necessarily transgressed.

2: Liberty and Tyranny

What is also important to note is the fact that the liberal narrative of freedom of speech/expression is based on the very authoritarianism all challenges to this narrative are accused of embracing.  The assumption that there are eternal rights to freedom of speech/expression––as if "rights", which by definition are political constructions, can be eternal or natural––is something that the liberal philosophy itself denies.  Indeed, Mill tells a story that is very different from his modern day disciples in the ACLU who imagine that free speech is some sort of unqualified, natural good connected to the progress of human society.  (This is, to be clear, the very story the ACLU tells: one of their prime ideologues, Nadin Strossen, has consistently argued that the reason to protect freedom of speech/expression, even the freedom of fascists to engage in hate speech, is important because this natural right is what has allowed every progress against tyranny.  She even believes that the Civil Rights Movement was successful because of free speech, a very strange claim considering that it had to struggle physically against its own "corn-dealers" so as to have the right to speak freely.) According to Mill, the Hobbesian story of the state of nature possesses some validity, and there was a time when an Absolute State with no freedom of speech/expression was required: his argument in On Liberty is simply that, because of human progress, the time had come where freedom of speech/expression must be permitted and that the Hobbesian solution was, rather than essentially wrong, antiquated.

Mill is not alone in this assessment; On Liberty was simply the distilled and most modern articulation of classic liberal philosophy that provided us with the modern conceptualization of free speech. Again, Noonan's Democratic Society and Human Needs is useful to explain the ways in which liberal philosophy developed out of the Hobbesian analysis of the state of affairs, even if it eventually seemed to be claiming the opposite.  Dominico Losurdo's Liberalism is another book that is useful in excavating the core commitments of the liberal project.  In any case, the reason I use Mill is not just because he synthesized the liberal project to such an extent that his reasoning about rights can be found even in Kantian-influenced liberals (i.e. Rawls) but also because, due to his efforts as a bourgeois reformer, On Liberty is more than just vague philosophy; it is also a description of the logic of the liberal bourgeois order.

So the argument here is that the liberal narrative judges the Hobbesian "natural" state of affairs as correct.  Human beings, if left to their natural inclinations, will be individualistic vectors of unlimited desire.  Our freedom is unbounded liberty and this will necessarily imply, in the absence of a state, the problem of the pursuit of individual desire conflicting with other individual desires.  Indeed, in On Liberty Mill tells a very interesting history: i) there was a time when there was too much liberty (i.e. the Hobbesian state of nature); ii) tyranny was necessary to deal with the excesses of this liberty (i.e. the Hobbesian solution was justified, but only for a time); iii) we have now reached a time where this tyranny as also become unnecessary (i.e. a society based on the "harm principle" can be conceptualized).  What is telling about this narrative is that the justification of free speech/expression is not based on an appeal to natural rights, or even the idea that this kind of liberty has always been in the interest of human progress––after all, Mill admits that tyranny was historically necessary for the preservation of the human species––but is instead something that can only happen in a modern, enlightened period where we are finally able to understand that our "primitive" pursuit of freedom (if this primitive state was precisely the one that Hobbes argued) was simply an instance of liberty conflicting with liberty; thus all we require is a state of affairs that can legislate rights and their conflict.

More importantly, though, is the history that Mills' narrative obscures.  Rather than buying an ideology about individual freedom and state of nature that is projected on the past, we should instead think of this commitment to a past authoritarianism as a revelation about the ways in which the current bourgeois order of right and morality has manifested.  There was a time when, in order to take power, the bourgeoisie was forced to enact moments of class tyranny, no different from the feudal tyrannies defended by Hobbes, so as to enact class power and establish its ideology as common sense.  After years of this revolutionary absolutism, bourgeois ideology––developed according to the conception of a bourgeois subject as an individual rights bearer––became common sense.  Mill can thus propose a sort of democratic society based on the harm principle because it is now "the time" in which bourgeois rule is becoming hegemonic.

(As an aside: Mill uses this story of European progress from the Hobbesian state of war to justify colonial chauvinism. He imagines, without any proof aside from conquest, that non-European nations haven't reached "the time" in which liberty is possible and thus deserve, for no reason other than the circular argument that they are already conquered, colonial stewardship.)

The harm principle is more than just a solution to the Hobbesian problem, it is an ideological barrier erected to prevent us from thinking of rebellion as anything more than a violation of this principle. As briefly discussed in the previous section: all violations to the harm principle shall be recognized as ways in which the Hobbesian state of nature can return.  If freedom is instead defined as something more than the freedom exercised in the marketplace of ideas––if it demands action in front of the corn-dealers house––then Mill is able to respond, thanks to his story about the emergence of this liberal rights-based narrative, that this definition is an endorsement of the state of nature that led Hobbes to defend the Absolute State.

Modern liberals, including those who think of themselves as socialists but are enamoured with vague free speech/expression claims, tend to defend this logic.  The moment you argue for a conception of freedom that is external to the simple speech/expression approach to freedom, you are accused of endorsing an Absolute State.  What is forgotten in these arguments is the fact that these freedoms are contingent upon moments of tyrannical absolutism, not to mention that the entire justification of the harm principle requires a state of emergency the moment the harm principle is violated––the pigs are justified in beating and arresting militants who confront the excesses of their exploiters and oppressors.

3: Socialism and Free Speech

The fact that bourgeois speech, by its own admission, required a long period of time in order to be operationalized should lead us to wonder about how socialism would be able to operationalize a similar scenario.  Hence, my arguments about speech/expression under socialism, as well as reflections on the need for a socialist repressive state apparatus, are simply pulled from a historical analysis of how modes of production have instantiated themselves as hegemonic.  Mill claims that his marketplace of ideas (and this metaphor regarding free speech, lifted from Adam Smith's conception of the market, says it all) was not possible in the past because people weren't ready for it… but the truth, which his ideological commitments prevent him from recognizing, is simply that the ruling class was consolidating its hegemony so that its ideas and values would become common sense, and thus a particular type of free speech/expression could be permitted.

The question then becomes a question about how socialism is able to deal with the problem of speech and expression during a long process of consolidating class rule; this problematic should be informed, if we are historical materialists, by a reflection on how other mode of productions dealt made their values, and thus ensured that free speech/expression could be functionable within this context, hegemonic.  Hence, I am entirely sympathetic to the history of actually existing socialism and the moments, in this history, where speech/expression were curtailed––though, it really needs to be said, the extent to which this speech was curtailed, and the telling counter-examples, tend to defy cold warrior historiographies (i.e. in the GDR, whatever its problems, free speech and expression around sex was decades ahead of West Germany, and in China during the GPCR it might have been the case that the permissiveness around free expression, until this period was shut down, became entirely chaotic).  A fledgling socialist state, worried that certain types of speech and expression will challenge the attempt to assert a new type of class rule, might have very good reasons to curtail such speech in its efforts, just like the efforts of the bourgeoisie centuries ago, to establish class hegemony.  Just as free speech was never an unqualified good even for the bourgeois order, it could not begin as such for a potential proletarian order.  To argue that a certain level of class power needs to be consolidated so as to allow a socialist conception of free speech/expression is not a very wild argument––it's what Mill, the father of free speech himself, argued for capitalism!

And yet to even think about figuring out mechanisms that will ensure a structure for speech and expression, and a way to deal with anti-socialist speech/expression that might function to undermine the socialist process, is anathema to many people raised with the assumption that bourgeois free speech is the very definition of free speech/expression, that all forms of censorship are intrinsically wrong, and that the current state just popped into existence with its ideologues saying these things were good for all time in an unqualified manner.  But my point about free speech/expression here is quite simple: once you ask questions about how capitalism was able to reach a point where it could permit this convention without being threatened, and once you realized that even this permission is severely qualified, then to even imagine that you have a natural right to free speech and expression, and that it even matters in the context of social change, should make you think.  Liberal free speech warriors, even those who imagine that they are socialists, don't like to do this thinking; the ACLU discourse, which pushes the lie that "free speech" is what changed society for the better (not oppressed masses with guns, or even oppressed pacifists getting beaten with firehoses), when they spend most of their time defending Nazis in the interest of the "greater good" has really done a lot of damage to critical thought.

I mean, good lord, just think a bit about the problem of the category of "hate speech" that even has a history of spreading confusion amongst the liberal bourgeois order.  The US refused to recognize this as a category, because its liberal ruling class is truly convinced that it is better that Nazis have the right to spread reaction than actually fighting fascism at home, whereas Canada (and other bourgeois states) chose to implement such laws––but for decidedly bourgeois reasons (some bourgeois apparatchiks in Canada think that all talk of communism should be considered "hate speech").  So when we socialists say some speech should be repressed, and other socialists-who-are-really-liberals react with horror, it's not as if we're arguing something that a lot of the so-called "free" capitalist states haven't already argued.

When the Supreme Court of Canada decided to legislate against hate speech it did so with a very Millsian justification: the argument was that hate speech was like the people assembled outside of the corn-dealer's house, the moment where speech/expression crosses into harm.  Bourgeois reasoning, yes, but I've no problem if it applies to a Nazi and, unlike Strossen and the ACLU, I don't think it's a "slippery slope" when you start mandating against Nazis (this is a logical fallacy anyhow), that there is some greater good in letting fascists have a platform, or that Chomsky was even halfways correct in assuming that censoring some ideas will make them more compelling––indeed Chomsky, despite calling himself an anarchist, is an anti-censorship proponent for straight up liberal reasons since this worry of a "black market of ideas" comes right out of Mill.  Does banning the talk of six day creationism from universities, because it doesn't belong there just as flat earth theory doesn't belong there, make this backwards ideology more compelling?  Not really: if you're not teaching it to people then less people are learning it, end of story.  As for repellant political ideas that are banned by hate speech laws, there is no compelling empirical evidence that proves they have become more intriguing because of their censorship.  The rise or decline of fascism has little to do with whether fascist ideas are censored or not, and herein lies the problem with this whole free speech narrative: society is not necessarily hampered or improved by legislation in the realm of speech/expression.

In any case, since we must admit that there is a history of capitalist legislation regarding speech––and a process in which it could reach a point where it could implement a quasi "marketplace of ideas" without threatening its hegemony––it's worth wondering how the same sort of hegemony in the realm of speech and expression can be accomplished by a socialist process.  As a Maoist I tend to think about this in a way that more ortho-Marxists-Leninists might dislike, but which is also a way that causes liberal hackles to rise.

First of all, as I have maintained elsewhere, I think its worthwhile to engage with the concept of re-education.  While the very term conjures up cold war nightmares of brainwashing camps, I think this is a rather pithy way to think through the meaning of the term.  For one thing, under capitalist society we are educated and re-educated from the moment we are born according to bourgeois ideology: what re-education in a socialist sense means is a counter-socialization.  Of course those who don't believe that they are socialized by the ruling ideas of the ruling class in the first place will conceive of every attempt at counter-hegemonic education as "brain-washing", but this is simply because they are under the impression that they aren't "brain-washed" in the first place––and that, more importantly, there is this thing called "brain-washing" as if this is not something that is normative to the human experience and has nothing to do with devious methods of mind control.  Anyone who grows up in capitalist society and thinks that their normative experience with education and media is not its own form of "mind control", and that there can be something more devious than this, is not thinking very critically.  There is a hypocrisy in assuming that attempts to disrupt this normative socialization counts as "brain-washing" because it also assumes that bourgeois socialization is a natural state of affairs.

Weirdly, a libertarian communist I was in a private email exchange with years back, who was offended by my posts about free speech/censorship/re-education, proclaimed that there would be no reason to legislate against reactionary speech, even with re-education, because people who had reactionary ideas would be "up against the wall" in the event of a revolution.  He was extremely offended by this kind of critique of liberal free speech, and he found the idea of a  society that would censor free speech or re-educate people abhorrent… And yet he had no problem with the idea of having large swathes of society summarily shot for their erroneous ideas.  So on the one hand he recognized that there would be a problem with reactionaries in the event of the revolution, but on the other hand he decided this problem could be solved with summary executions!  The weirdness of this argument should be evident: i) it assumes that a revolutionary society is not a process but a one time event, that once you get rid of a group of malcontents, all anti-socialist ideas will disappear (ironically this parallels a classic "Stalinist" claim that anti-socialist ideas are imported by external wreckers, hence the need to purge… which will just keep happening if this is your view of reality since it actually doesn't end with the eradication of a few bad apples); ii) that, following from the first assumption, the problem with anti-socialist ideas isn't something everyone emerging from the filth of capitalist society will have to deal with since we have all been socialized according to bourgeois ideology; iii) that it is somehow morally superior to execute a whole bunch of people right away rather than, the necessity of revolutionary violence notwithstanding, find a way to pull people into socialism rather than just put them up against the wall.  As Mao once stated, "to cut off heads changes nothing… it is what is inside the head which has to be changed."

So to claim that, in the interests of retaining a liberal notion of free speech/expression, all the reactionaries will be killed off in a revolution and then, since we can't get them all, we'll be able to round them up and shoot them––because this is better than legislating against speech or embarking on re-education––is to my mind the kind of vile ethical judgments Maoists are often accused of making.  And if you're going to accuse me of importing some kind of moral consideration into a context where morality, since it's just "class morality" anyway, has no reason to exist, then I will just point out that the whole argument is motivated by some moral fidelity to the desire of having a socialist marketplace of ideas in the first place.  (Also, despite Engels' claims about all morality being class morality, if you really think through these passages in Anti-Duhring you have to wonder at the nuance he brings to the discussion when he consistently refers to a "really human morality" that can only come into being in a classless society.)  Even without ethical considerations it is sheer nonsense to think that you can get your utopian free speech socialism with a few bloody purges, or that your revolution will be able to make the god-like judgments required to discover where and who the culprits are.

But let's go further than simple re-education (or counter-socialization) and look at the ways speech and expression were affected in the most recent world historical revolution that gave us the basis of what would become Maoism.  The GPCR and all of the smaller processes that produced the GPCR were notable in the way they went beyond the liberal concept of freedom and generated a chaos of expression that, rather than being a step back into censorship absolutism was the complete opposite. The problem with the Cultural Revolution for bourgeois ideologists was not that it erred on the side of pre-liberal absolutism but instead permitted a situation where the harm principle was suspended and, for a brief period of time, the repressive state apparatus was barred from intervening in the way Mill believed it should be allowed to intervene.  Cold Warrior historians tried to square this with their ideologies about Stalinist totalitarian control by inventing complex explanations about Mao's ability to manipulate and control every minute detail of Chinese society, so that he was treated as almost godlike in his ability to dictate the struggles of multiple and chaotic groups.  Orientalism was helpful in this regard; only a disciplined Confucianoid mandarin such as Mao would be able to control such chaos for nefarious purposes (but what purposes?), an alien mind playing with humans like they were pieces on a Go board!  The narrative becomes rather silly: Mao unleashes the cultural revolution, and all its chaos, to purge his enemies in the most indirect and messy manner (a claim that violates Occam's razor), Mao shuts down this revolution with the same godlike powers once it has accomplished his personal aims.

(While there is no doubt, at least to my mind, that Mao was able to intervene to conclude the Cultural Revolution when it went too far, this says more about the victory of his political enemies and his turning away from the socialist road than some organized plot of personal politics: his successors were in the camp of the GPCR's enemies, he ended up becoming a neutralized talking head who met with Nixon, he became everything that he was supposedly manipulating the masses to fight, and so to speak of "personal aims" from the moment he met with the rebels and agreed that the party needed to be "bombarded" by the masses becomes a rather incoherent narrative.  Can we say that the GPCR took Mao unaware, challenged his own authority, forced him to conclude his life in the camp of the roaders he once tried to combat?  Yes, I think we can and this proves that, because of how it affected his own politics and position, it was not a process that he initiated for "mandarin" purposes.  It spilled far beyond him.)

Something like the GPCR would be, if Mill was around to discuss it, an eruption of free expression that was not a properly legislated marketplace of ideas but instead was the chaos of a hundred mobs outside of the corn-dealer's house being told it was okay to violate the harm principle. Here we discover a moment of free expression that spills beyond what is permitted by liberal boundaries due to the fact that it might, in fact, be an expression that encourages harm. In this context we can observe a situation where freedom of speech and expression spills far beyond the liberal boundaries and is thus declared licentious. Even worse, we are often told a story that this breaching never happened––that it was always "totalitarian" outside of the privileged, first world realm of free speech and that the problem with the Cultural Revolution in China was not that it violated the harm principle but that it was just a controlled act of tyrannical manipulation. The truth, of course (and defended by so many Sinologists) is that, whatever interpretation we might give to Mao's attempt to reign in the GPCR, we were indeed dealing with a situation in which freedom of speech and expression violated the parameters set up by the liberal narrative codified by Mill's corn dealer example.

Point being: actually existing communism is not hampering liberal conventions of free speech but is rather going further than these conventions to the point of potential chaos.  In this sense the liberal convention of free speech must be criticized as limited, contradictory, hypocritical.  The same question I asked in that initial polemical post remains relevant: who's speech and for whom?