Willmoore Kendall’s support of (relative) free speech is an integral part of his view of the “deliberate sense of the community,” which in turn is informed by the “public truth,” which itself is the political expression of the particular American historical experience of transcendent revelation.

“[B]ut a completely open society in which everyone does his own thing cannot survive.” – Walter Berns

Introduction

In the film Lawrence of Arabia, a government official named Mr. Dryden explains to Colonel Lawrence, the famous scholar/warrior of the Great War, the difference, and the danger, of speaking lies and half-lies. He says that he, a British diplomat, naturally tells lies, by which he merely hides the truth, but that Col. Lawrence, uncomfortable with lies, tells half-lies. And a man who tells half-lies has forgotten where he put it. Today, we are still confronted with both kinds of speakers and the resulting confusion of reality and fantasy. Of course, I am really speaking of the issue, not new in our country, of whether or not all speech should be protected and if so, are there any exceptions. Some would say that the speech of the Leftist/Marxist/ Liberal, being primarily one of lies, should be curtailed, and liberals make the same claim about conservatives, while in between are the libertarians who speak of voluntary action and the absolute right of the individual to say and do whatever he wants so long as he does not harm anyone else. Within the Washington, DC lingo this is all about whose “narrative” has credibility, who speaks with authority, and whether or not some narratives should be suppressed. Most of the arguments are well-known, but since the liberals and the libertarians continue to press their cases in the present circumstances, conservatives cannot help but rehearse their own corresponding counter-arguments – which is the object of this essay.

 Absolute Free Speech and Public Truth

One of the leading critics of government in the post-World War II period was Willmoore Kendall. Having been a left-leaning thinker in his younger years, sometimes described as being more or less Trotskyite, he moved increasingly to the political right. He served for a time in the CIA, and later joined the faculty at Yale University, and eventually converted to Roman Catholicism. Among his students at Yale were Wiiliam F. Buckley, Jr. and Mr. Buckley’s brother-in-law, L. Brent Bozell. Even such a staunch libertarian as Frank Meyer doffed his cap to Kendall by including him in the dedication of his 1962 book In Defense of Liberty.¹ Professor Kendall, however, was neither a libertarian advocate of absolute free speech, nor a left-leaning controller of narratives.

Kendall begins his treatment of the libertarian case by examining the cornerstone author for free speech absolutists, John Stuart Mill, whose views are found in his famous 1859 essay On Liberty. He underlines five problems with Mills views. First, to be clear, Mill was not absolutely absolute about free speech. That is, he would still have laws against libel and slander and for the protection of children. Like Wilhelm von Humbolt before him, his treatment of free speech is for adults who, one might say, respect one another’s property rights. But in other matters, where the libertarian and the conservative would differ, he does indeed live up to his absolutist reputation. In socially threatening cases, such as the advocacy of communism, anarchism, or polygamy, Mill would still be a defender of absolute liberty, no matter how dangerous to the established political, moral, social or economic order. That advocates of such causes might pick up adherents is no problem; it is a further reason for Mill to let them speak. “All utterance,” summarizes Kendall, “with a bearing on public policy – political, social, or economic – is to be permitted, no matter what some members of society (even the majority, even an overwhelming majority, even all the members save some lonely dissenter) may happen to think of it.”²

Secondly, Mill does not merely want freedom of thought and speech. He wants a way of life appropriate to their maintenance. That entails making society “open” and “tolerant” for nearly all opinions. It means elevating free speech and thought to the pinnacle of values. Here, the matter becomes particularly problematical. For when we elevate these to the “position of society’s highest good,” they cease being merely freedom of thought and speech. They become, for many great and important issues, “society’s ultimate standard of order.”³ While Mill did not himself ferret out the implications of his position, his disciples, especially in the United States, have done so. Their conclusion is that “The open society… must see to it that all doctrines start equal in the market-place of ideas; for society to assign an advantaged position to these doctrines rather than those would be tantamount to suppressing those. Society can, therefore, have no orthodoxy, no public truth, no standard, upon whose validity it is entitled to insist….” Well, no public truth, that is, except this one, that there is no public truth. If freedom is the highest good, then society is not free to give public status to its other belief standards and values. In Mill’s open society, freedom is conferred upon its members, says Kendall, “but it does so at the cost of its own freedom as a society.”⁴ Certainly, no traditional sense of a higher good is allowed. Obviously, too, there can be no appeal to Divine Revelation or Authority, only to intellectual argument.

Thirdly, Mill confronts the reader with false dilemmas: either total freedom of speech, or total tyranny. When in fact societies are open to some things and closed to others, or even partially open to some things. Any healthy society has a sense of what it is about, a basic idea or image of what it is, which Kendall calls a “public truth,” a point critical to his entire view on speech. Its members cherish many goods including, in Kendall’s words, “the living of the truth they believe themselves to embody already, and the communication of that truth (pretty much intact, moreover) to future generations….”⁵ Political discussion (more or less open) occurs within the commitment to this public truth (which is closed). For Mill, the assertion of “Truth” amounts to a claim of “infallibility” which is absurd. There can be only “partial truths,” limited and tentative. Each individual only knows small things. When one or more disagree about a teaching or a policy, we cannot know who is right, so we must therefore have complete freedom of speech if any insight is to be gained.

Mill, of course, appeals to no authority or prior experience. Instead, he relies on his own pronouncement that all previous truths are merely partial truths. He promotes this skepticism because, Kendall argues, “it is the perfect weapon… to turn upon the traditional society that he must overthrow. For he who would destroy a society must first destroy the public truth it conceives itself as embodying.…”⁶ In fact, the all-or-nothing approach actually amounts to an imperative to action, to undermining a society’s value foundation. “When, therefore, Mill’s followers demand the elevation of skepticism to the status of a national religion, and the remaking of society in the image of that religion, they are not reading something into his position that is not there…They are, rather, merely making specific applications of notions that, for Mill, are the point of departure for the entire discussion.”⁷ But society is not a debating club on its foundational values. It wants to live its truth as it knows and believes it, not merely pursue a rational discussion of it.

Fourthly, the Millian society goes too far. The emphasis on partial truths allows for no “concludability,” i.e., no Truth, on any matter (again, aside from its basic premise). Or, to put in another way, the “open” society value can never accept Truth. The process of openness is a value for its own sake; “concludability” is rejected. And, like free speech, absolute tolerance must be accepted, except in the case of those who advocate a closure, that is, a kind of intolerance such as the defense of the public Truth. In Kendall’s words, “In order to practice tolerance on behalf of the pursuit of truth, you have first to value and believe in not merely the pursuit of truth but truth itself, with all its accumulated riches to date. The all-questions-are-open-questions society cannot do that; it cannot, therefore, practice tolerance towards those who disagree with it. It must persecute – and, on its very own showing, so arrest the pursuit of truth.” (original emphasis)⁸

Here Kendall strikingly observes what he calls the central paradox of our time: “The fact that the situations in American life that are dominated by Mill’s disciples, that is, by Liberals not Conservatives – the federal bureaucracy, for example, and the faculties of our great institutions of higher learning – are precisely those in which we find, on the major issues of our time, a sheer monotonous conforming, a disciplined chorus of voices all saying virtually the same thing in the same accents, the like of which we encounter nowhere else.”⁹ One can only wonder what he would he say about the situation today!

Fifthly, Mill confuses free speech with free discussion. The latter comes with correlative duties; the right to speak comes with pre-requisites. His example is the older academic tradition which requires that he who wishes to speak prepare himself in the manner prescribed by the community and with courtesy and respect; with the idea that others also have something to teach him. And finally, the community is in charge of the orthodoxy and changes must be sanctioned by it. Similarly, also in society, free speech must be responsible speech which means operating within the parameters of acceptability set forth by that society’s traditions, values, and customs.

It is Kendall’s view that Mill’s standard of the right to speak does not pursue either truth or responsible discussion. Instead, it yields “sheer deafening noise and sheer demoralizing confusion.” It “divorces the right to speak from the duties correlative to the right….” His right of free speech is the right to speak ad nauseam with impunity and it is a view filled with the egalitarian overtones of the French Revolution.¹⁰ Which is different from the aristocratic overtones of the pursuit of truth. It fosters a society which “will descend ineluctably into ever-deepening differences of opinion, into progressive breakdown of those common premises upon which alone a society can conduct its affairs by discussion, and so into the abandonment of the discussion process and the arbitrament of public question by violence and civil war”¹¹ (original emphasis). Mill’s view, on the other hand, leads to fragmentation of opinion with a tendency to become ever more extreme, to irresponsible speculation and irresponsible utterance. All of which lends itself to the destruction of traditional society which is not only the effect but for some also the purpose of their advocacy.

First Amendment

The conflict between the absolutist view of free speech, and those conservatives who would curtail it, was famously seen in the McCarthy era. Was pro-Communist speech allowable by the First Amendment? That amendment says Congress shall make no law “abridging the freedom of speech, or of the press….” For an absolutist on free speech, the wording is clear and final: “no law,” period. But Kendall’s youthful flirtation with that ideology undoubtedly sharpened his sensitivities on the question of free speech. He reminds us that the First Amendment’s free speech clause restricts only Congress: “Congress shall make no law abridging the freedom of speech, or of the press….” The states and their local governments retain their sovereignty in these matters. Secondly, even this restriction may not be without exception. Kendall views the Preamble to the Constitution as the definition of its purpose which includes the establishment of goods other than speech. “But the First Amendment is part of the Constitution, the purpose of which is to vouchsafe to the American people certain goods – justice, for example – that are set forth in its Preamble.” Now unless freedom and justice are the same thing, he says, which they are not, the First Amendment, must on occasion be set aside so that Congress will be free “to take action on behalf of those other goods.”¹²

In a later discussion about the Constitution, Kendall unveils his policy cornerstone, the point of departure for how our government is supposed to work: “‘Our system was devised by men who feared and disliked above all things the operation in politics of sheer, naked will…. It was devised for purposes that had nothing to do with simplistic formulae like ‘the will of the people’….. It was devised to effectuate not the will of the people, but rather, as The Federalist puts it, the deliberate sense of the community, the whole community, as to what ought to be done, what policies ought to be adopted’” (emphasis added).¹³ The Federalist article he refers to is No. 63, where Madison writes: “I shall not scruple to add that such an institution [as the Senate] may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and the deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers….” Legislators are to “check the misguided career and to suspend the blow meditated by the people against themselves….” This “cool and deliberate sense of the community” should prevail even in questions of liberty, or perhaps especially so. “[L]liberty,” writes Madison, “may be endangered by the abuses of liberty as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, is apparently most to be apprehended by the United States.” To be “apprehended” is understood in the sense of arrested, stopped, or restrained. And this system works only if it is rooted in virtue, that virtue which infuses the public truth. In Madison’s famous words (Federalist No. 57): “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.” These passages remind one of the famous 18^th century British parliamentarian Edmund Burke: “Society requires not only that the passions of individuals should be subjected, but that even in the mass and body, as well as in the individuals, the inclinations of men should be frequently thwarted, their will controlled, and their passions brought into subjection.”

Kendall emphasizes that Madison envisioned the “virtuous men” elected by the people would then – uninstructed on the particulars – deliberate policy matters. “Virtuous” meant men who were faithful to the American identity and its public truth, who would not betray it when they deliberated about policy, who would keep the faith of the Founding Fathers. Madison’s concern was to have a process which would produce just policy decisions, “a process that was always intended to emphasize specifically moral considerations, e.g., the kind of considerations involved in deciding who are the virtuous men it is a process that was originally conceived in terms of a moral theory of politics….” Madison’s theory emphasizes “the ability of the people… to make sound judgments regarding the virtue of their neighbors, not on their ability to deliberate on matters of policy.”¹⁴ The true American tradition, Kendall said, was “ ‘the representative assembly deliberating under God; the virtuous people, virtuous because deeply religious and thus committed to the process of searching for the transcendent ruth.’”¹⁵ In addition to finding “transcendent truth” affecting public policy, Kendall came to embrace the truths of the “Great Tradition,” with special concern for the traditional American political orthodoxy: the Declaration of Independence’s emphasis on absolute truths (“we hold these truths”) in opposition to the liberals of his day.¹⁶

This is in contrast not merely to the modern liberal views, but especially the judicial view which only eschews judgments of virtue and morals with an unsurprising overemphasis on process. The Supreme Court has come to view the First Amendment, for example, through the eyes of the Fourteenth Amendment, that is, making the latter the standard to judge the former. The Fourteenth Amendment, adopted in 1868, in its current interpretation is taken to mean that “equal protection” and especially “due process” mean that speech is very nearly absolute, and the public Truth cannot be protected by abrogating that right. Cultural Marxists and other persons wishing the end of traditional society must be equally able to voice and promote their views. That this is not what the framers of the Fourteenth Amendment had in mind is clear from its history, even if one ignores issues giving doubt to its legitimacy to begin with.¹⁷

But the validity of the Supreme Court’s Fourteenth Amendment/First Amendment view and its broader role as final arbiter of the Constitution’s meaning is doubtful. According to Kendall freedom of speech and the press “may have meant to those who supported ratification of the First [Amendment] merely freedom within the limits set by the existing seditious libel laws, which is why those same gentlemen felt ‘free’ to enact the Alien and Sedition Acts.”¹⁸ In line with Kendall’s view is that of L. Brent Bozell who reminds us of Madison’s main objection to the notion that the judicial authority or indeed any other department of the federal government was sole or ultimate expositor of the meaning of the Constitution: it was a logical error that there could be any tribunal superior to the creators of the federal compact which were the States themselves. In Madison’s words: “‘The States… being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated.’’’¹⁹ Bozell says it is also belied by the historical record. “[S]ober students have a different understanding of the matter: they know, a priori, that no responsible group of law givers would deprive their society of the means to protect itself against speech that endangered its survival; and they know, a posteriori, that this particular group of law givers did not think of themselves to be doing so, as witness that the Congress that wrote the First Amendment also wrote, a scant five years later, the Alien and Sedition Acts.”²⁰

Another author, Professor Jonathan Turley, also admits the non-libertarian view of the Founders. “Yet even those leaders seem,” he says, “to have had a more modest view of free speech protections, including the possibility of seditious prosecutions.” He adds: “In a statement during the Virginia Resolutions debate, Madison assured his opponents ‘every libelous writing or expression might receive its punishment in the state courts.’”²¹

We may elaborate on Madison’s point and say that the “deliberate sense of the community” also logically requires a platform upon which to deliberate, that is, a point of departure of assumed values that makes such deliberations rational. Thinking along these lines, then, means that sometimes, a restriction on speech may be justifiable, not only for the states, but also for the federal government.

Speech and Moral Content

Obviously, to extend protected speech to all levels of government entailed, at least historically if not also logically, the separation of moral content, i.e., a moral judgment of content, from the (nearly) absolute right of free speech and press. Walter Berns, Constitutional and legal scholar, gives us one case to illustrate the point. In 1821, a matter was brought before the Massachusetts courts involving the publication of the book Memoirs of a Woman of Pleasure, otherwise known as Fanny Hill. The trial court did not allow its publication due to its immoral content. Upon appeal the argument was made that the lower court had not allowed the jury to see a copy of the book. However, “[t]he Massachusetts Supreme Court,” writes Berns, “upheld the trial court: to allow the book to be displayed upon the records of the court, said Chief Judge Parker, ‘would be to require that the public itself should give permanency and notoriety to indecency, in order to punish it.’” In 1966, however, the case came again before the Massachusetts courts, but this time “freedom of the press had been made a part of that liberty protected by the Fourteenth Amendment against restrictive state action, which meant that Massachusetts could not have the last word.” That now belonged to the U.S. Supreme Court which, according to Dr. Berns, preferred liberty, “that is, in this case, pornography.” He further believed the case reflects and contributes to the increasing trend of the “publification of sex,” which undermines marriage, intimacy, and privacy as well as morality.²²

However, the inescapable connection between speech and moral content, is also present in other western countries like Germany. And since the German constitution also guarantees freedom of speech, a similar tension between that freedom and moral content is also seen in German courts, not unlike the Fanny Hill case in Massachusetts. A similar case came before the trial court involving the publication of the novel titled: Josefine Mutzenbacher: The Life Story of a Viennese Prostitute as told by Herself (1906) by Felix Salten. The lower court found that the book was morally dangerous to youth, and placed it on the list of publications dangerous to youth, which would also effect the book’s dissemination. The higher court, however, argued that the lower court had not properly balanced the legitimate concern for youth with the legitimate need of freedom for art. The Federal Constitutional Court held that merely being pornographic did not necessarily mean it couldn’t be protected by the German constitution’s provision for free speech. It therefore quashed the trial court’s ruling.²³

This result is ironic for three reasons. First, Felix Salten, whose book the lower court deemed dangerous to youth, was also the author of Bambi, a famous children’s story. It is also ironic since the German tradition since the 18^th century emphasizes “Bildung” or character formation, including “Bildungsromanen” or novels promoting character development, especially important for youth. And finally, it is ironic coming from the land of Wilhelm von Humbolt, a man of refined cultural values for whom “Bildung” was essential for the individual and at the same time a man who was more or less a libertarian and inspired John Stuart Mill. Or perhaps it is better to say that in this last instance it is more a matter of confliction than irony, which is consistent with Humbolt’s professional life.²⁴

While the higher court could clearly not become entangled, in this and in other cases, in the specious application of America’s Fourteenth Amendment to the First Amendment, it does appear that it became entangled in the method of “balancing” (Abwaegung), losing itself in the self-induced complexity of legal analysis, with little if any moral compass to show the way out. Some have even denounced the court’s approach as a “pure staging of superficial judicial rationality.”²⁵ Others may be inclined to speculate it is part of a broader move from liberty to license or social deconstruction in an implicit denial of objective moral values. Be that as it may, the similarity of result is striking in the two cases, despite different legal pathways of arriving at their decisions. They’re similar also in that they both appear to contract the definition and meaning of “harm” in order to maximize “freedom.” And that is significant.

What Is “Harm”?

In the foregoing two cases, “moral harm” received little weight in the final determinations. In fact, in the current climate, the Millian concept of “social maintenance” to support absolute free speech and thought requires the redefinition of the meaning of “harm.” For example, the recipe, “free speech plus openness/tolerance yields sexual immorality,” may be accepted by the libertarian but only with the understanding that there is no “harm.” That is because, for the libertarian, the term entails only material harm: damage to property or person (including reputation as reflected in slander and libel laws). He would probably dismiss the term “immorality” in the first place as pejorative and substitute “a variety of sexual preferences.” Jonathan Turley, professor of law at George Washington University, and frequent legal commentator on Fox News, underlines the meaning: “The scope of that harm for Mill is necessarily confined to actual as opposed to spiritual or moral harm.” (emphasis added)²⁶

The insistence upon “actual harm” used to be thought of as a limit, a strong restriction, of government action. Turley explains, “Many have long relied upon the harm principle in a myriad of areas to define the limits on government controls and action, particularly in defense of free speech.”²⁷ But the same term is now used by “liberals” to promote “robust censorship programs” across social media platforms for speech they find offensive, that is, “harmful.” The liberal extremists today and others, he says, are “embracing orthodoxy over diversity of thought.”²⁸ Of course, what “compulsive liberals” (Turley) mean by harm is quite different from libertarians. For the former, the term involves public harms, as the liberal defines them, to include curtailments of speech if it is deemed offensive, racist, hateful, or sexist. They are part of the “public values” which compulsive liberals would protect through censorship, superficially mimicking Kendall’s “public truth.” So while libertarians deny such a thing as public truth, or public orthodoxy, liberals counterfeit a form of it, replacing traditional content with their own modern/post-modern ideas. It should be clear that the traditional Christian finds himself in opposition to both.

To illustrate the issue of “harm,” that is, with its changed definition, in relation to speech, consider for a moment a Canadian court case. In the matter of Bountiful (2011 BCSC 1588) the issue revolved around the legitimacy, among other things, of marriages with multiple partners, later referred to as “plural unions.” Professor Turley, as an expert witness, stressed the absence of evidence for actual harm, and hence favored decriminalization, while other expert witnesses argued for continued criminalization. Turley writes that Chief Justice Robert J. Baumann “was convinced that plural unions cause harm [spiritual or moral] regardless of whether particular unions are consensual and reveal no cognizable harm [i.e., material harm only] to participants. It was the threat of its very existence to the fabric of marriage as an institution that Bauman saw as a credible basis for criminal sanctions.” The import of the judge’s ruling in this matter “was that monogamous marriage is the foundation for society and that these consensual, plural unions cannot be tolerated.” Professor Turley, however, dismisses the ruling as “tautological,” meaning that “harm” occurs by definition, so that it “offers little basis for retort.”²⁹ Of course, in the opposite case, the libertarian definition, “harm” is defined in such a way as to exclude social or institutional injury and correspondingly also offers little basis for retort. All references to the broader definition are dismissed.

Today, moral standards are obviously not based on traditional moral content. “Few people continue to argue,” says Professor Turley, “that society has a right to regulate consensual sexual relations between adults, and it is quite common for people to have multiple sexual partners today.”³⁰ And this trend has been reflected in the courts, too, which have long tended to avoid moralistic judgments, and to use “social harm” as a proxy for a judgment based on the new morality. “While the criminalization of different forms of marriage – whether interracial, plural, or homosexual – was once based on open majoritarian moral judgments, modern cases and scholarship have tended to emphasize social harm. Modern jurisprudence – and sensibility – eschews direct moral dictates.”³¹ What “social harm” means in the libertarian view (overlapping with the liberal view) is in substance, then, very different from what traditional public orthodoxy entails.

And just to take a shot at those “majoritarian” moralists, Professor Turley insists that plural unions are not immoral after all and that permitting them would actually be morally superior. Allowing these unions, he says, “is not, however, the invitation to immorality that some have suggested in the public debate. Rather, it allows for different moral codes to flourish within a pluralistic society. Indeed, it would be a triumph for morality in the truest sense since it allows people to pursue their own moral codes and paths rather than yield to the moral codes of their neighbors”³² (emphasis added). It is difficult to see in this where there is any immorality, beyond yielding to the moral codes of one’s neighbors; or, simply, immorality is not getting one’s own way. Yielding to the authority of God, not to one’s own inclinations, would also be unacceptable to the pure libertarian, especially if this were forced through customs and laws. So it is just as Russell Kirk commented that libertarians tend to pursue sexual eccentricity on principle, “[i]n a highly tolerant society like that of America today, such defiance of authority on principle may lead to perversity on principle… there is no great gulf fixed between libertarianism and libertinism.”³³

Obviously, then, the libertarian position is not neutral or value free. It is biased against traditional Christian morality. It begins with the standard of “consent” for judging the acceptability of immoral behavior. The libertarian makes this his absolute standard. But who decides this standard? What about all those people who do not consent to it? Their non-consent is ignored, as if the rightness of the libertarian standard were as self-evident as it is imminent.

They envision a self-enclosed moral world in which action defines itself, that is, defines its own rightness by the very act which needs to be evaluated. The standard which informs choice is the act of choosing. Voluntary choice is its own rightness. And this standard must be forced on those not consenting to it, even if the latter constitute a majority. In fact, in a related article, Professor Turley offers this rather curious conclusion: “If we are to preserve this defining right [of absolute free speech], we may have to embrace the incongruous notion of coercing free speech” (emphasis added). There is a role for government, even under a Millian perspective, for protecting enclaves of free expression and free thought.”³⁴ A little later he underlines this thought that by adding, “To the extent that we want to protect [Mill’s] circles of free speech, the government may now prove the guarantor of – rather than the threat to – free speech. It is possible to coerce free speech through content-neutral principles that protect forums of expression.” Lastly, we should unite to resist “viewpoint intolerance in the marketplace of ideas.”³⁵ (Would not Rousseau, who said men must be forced to be free, have sympathy for this?)

A similar bias holds for the definition of harm. Turley’s sense of harm is equally “social” in its need for social maintenance. It makes no sense for Robinson Crusoe to demand to be left alone. That demand can occur only in a society which values privacy; but privacy is always limited and contingent. Just as a conversative believes he has a stake in the social arrangement of marriage which requires it to be a monogamous, not a plural, union – he has, in other words, an identity in a society with this arrangement – so, too, the libertarian has an identity in an alternative social arrangement which comes with both procedural and substantive conditions. The procedural consists of his insistence on consent as the highest policy standard. (There will, of course, be those who do not give their consent to making consent the absolute standard; they are the losers in this arrangement.) The substantive is that there must actually be consenting adults engaging in plural unions, etc. The libertarian would be and is disturbed if these are not allowed or, if allowed, if they do not occur, for there is no use in having options that are never chosen. A society dominated by monogamous marriage, however voluntary, is a threat, which he experiences as “social harm,” and he would therefore agitate to reduce its dominance. Moral diversity is his public orthodoxy.

It is also social due to the interdependent nature of choice. If I am compelled through the political or judicial process as a citizen to accept plural unions, then my “preference” – my belief in and identity with the exclusive moral rightness of monogamous marriage – which previously had been the socially defining institutional arrangement, is trivialized. In the pure libertarian scheme, the “harm” done to me, and to the anterior social identity, is not countable; there may be damages, but they are not legal injuries.

That harm is not only between people, but also within the individual. The individual may give his “consent” to a policy but withhold his “assent,” that is, he may acquiesce and do what is required (yield his will) but not agree to its reasonableness (his understanding rejects its rightfulness). The point is illustrated in the story of the rowdy little boy in church who was told to sit down and be quiet. “I’m sittin’ down on the outside,” he said as he complied, “but I’m standin’ up on the inside.” On a serious level, well-known libertarian Frank Meyer observes the same thing when he concludes if a policy is wrong and false, then “in my inner being I will have no part of it, whatever may be forced upon me physically.”³⁶

Of course, the conservatives recognize that “society” can be harmed, too, and reference is often made to the “clear and present danger” test to see if government restraint on speech or action is justified. Though Mill has a reputation for being of the “clear and present” danger school of thought, it is not deserved when it comes to threats like Communism. It is precisely here, argues Kendall, that Mill wants “to maintain absolute liberty of discussion.” Mill would reject those doctrines which hold that the enemies of liberty must not be allowed to use “civil liberties” in order to destroy them, or that a “free society is entitled to interfere with free expression in order to perpetuate its own existence.”³⁷ Given the logical and policy problems this view presents – like, “the total skeptic hasn’t a mind to doubt with” – Kendall’s reluctance to press the flaw “lest we be accused of trying to score a mere ‘debater’s’ point…” may need to be reconsidered. ³⁸ Indeed, this irrationality seems to be pervasive today.

The conflict over “social harm” is seen in the famous case of Gitlow vs. New York (1925). Mr. Gitlow and his colleague published a newspaper called The Revolutionary Age and also produced “The Left Wing Manifesto,” modeled along the lines of The Communist Manifesto, which argued for the violent overthrow of the United States government. The State of New York prosecuted them successfully for violation of its criminal anarchy law. The appellate court upheld the conviction and so did the U.S. Supreme Court. The case is significant because it involves issues of free speech and the interpretation of the First Amendment in the light of the Fourteenth Amendment.³⁹

In that case, Justice Oliver Wendell Holmes’ argued in favor of the defendant on the basis of the “clear and present danger” standard which required an evaluation of circumstances, and probable consequences. Since the danger of the speech in question lay in the indefinite future, it was too vague to disallow. Holmes implicitly confuses the sense of the “present” for the individual, with the sense of “present” for society or a nation. “[I]t is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant’s views.”⁴⁰ Therefore, it “had no chance of starting a present conflagration,” that is, no chance in the short run present. But if, “in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” Since nations measure duration in centuries, decades are but minutes away, as it were, and therefore such a danger as the progressive development of a communist revolution is “present” in the relevant social sense. If Gitlow and other communists require time for their revolution to take effect, years, in the social sense, that is a proportionally imminent danger.

Holmes likewise obfuscates the concept of “clear.” Conflating the dialectical with the rhetorical, he writes in his dissenting opinion: “Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on.…” The only difference between an opinion and an incitement, he maintains, is enthusiasm.

Justice Sanford, who delivered the majority opinion, avoided both errors. A spark once started, even if it wouldn’t detonate until the indefinite future, was still a valid concern. He insisted that the danger comes from the tendency that arises from the nature of the act which is identified in the general statement of the law, and need not be constrained by the specific or probable time frame. (“Tendency” was a word he used frequently in delivering the opinion; it is called the “bad tendency rule.”) The manifesto, said Sandford, “advocates and urges in fervent language mass action which shall progressively foment industrial disturbances…” “Progressively,” which is to say, over time. The “immediate danger is none the less real and substantial because the effect of a given utterance cannot be accurately foreseen. The State cannot reasonably be required to measure the danger from such utterance in the nice balance of a jeweler’s scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration.” The State must act to extinguish the spark without waiting… it may suppress the threatened danger in its “incipiency.” So the concepts of “clear and present,” understood in this way, coincide with the “bad tendency” rule. They are reconciled once the meaning of “time” as applied socially as explained above is taken into account.

Justice Sanford also insists that “when the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil is not open to consideration.” And specifically referring to the issue of speech he adds that “the use of the language comes within its [the legislature’s] prohibition.” The connection between speech and moral content is inescapable. Implicitly, speech that incites evil is itself evil.

The pretense of a morally or spiritually neutral definition of harm is unsustainable, logically and experientially. Without a transcendent ordering principle – which is what Kendall’s public truth is – one man’s choice all too often becomes another man’s harm in more than one way. That ordering principle is the condition of virtue which is also the condition of freedom. Moral nihilism, on the other hand, is not an ordering principle, and so conduces neither to virtue nor freedom.⁴¹

Restraints on Free Speech in the Weimar Republic

Another recent example the problem of free speech revolves around the brouhaha over Maragaret Brennan’s remark in a CBS interview of Secretary of State Marco Rubio concerning Hitler’s rise to power. Hitler used free speech guaranteed by the Weimar Constitution to advance his party, she argued, and this ultimately led to genocide under the Nazi regime. If only he hadn’t been allowed to speak freely!

The response from some on the political right is that her remark was nonsense and ahistorical. Free speech, they say, protects and promotes liberty. Again, Professor Turley explains the libertarian view. “When they came to power,” he says, “the Nazis moved immediately to crack down on free speech and criminalize dissent.” And again, “It was not free speech that the Nazis used to propel their movement, but the denial of free speech. They portrayed the government as so fearful and fragile that it could not allow opposing views to be stated publicly.”⁴² The Weimar Republic actually did have laws restricting hate speech. Free speech would have been preferable in the libertarian view since it would have won out in any rational discussion.

Or, to help rational discussion along, Nazi violence needed to be stopped. In fact, the way to have stopped Hitler, some free-speech absolutists say, was not through censorship, but by vigorous enforcement of the laws involving violence. Such is the view of Mr. Lukianoff, a lawyer and the president of the Foundation of Individual Rights in Education (FIRE). The Nazis, he says, were “under-punished” so far as political violence was concerned due to the “sympathy afforded to them by judges and juries…. Ultimately, it was the permissive attitude towards violence and the degradation of the rule of law that led to the greatest atrocity in history.”⁴³

However, the reality is that restrictions on speech failed because they were, for the most part, not effectively applied, and the same permissive attitude toward violence was in play with the speech restrictions. There were three avenues of defense used by the Jewish Central Union (Central Verein): the criminal code, civil proceedings (injunctions) and administrative orders. Of these three, the criminal code was most heavily relied on. The application of the criminal law was largely nominal so that, operationally, Hitler and the Nazi’s did enjoy a wide range of liberty. The punishment took the form of banishment from speaking, fines, or jail terms. Doskow and Jacoby comment about incarceration: “Prison sentences, although rare, were nevertheless imposed upon some of the leaders of the Nazi movement.”⁴⁴ But they point out that these were often nullified: amnesties “were frequently granted during the Weimar period.” There were also pardons, and other devices which enabled defendants who were sentenced to imprisonment to avoid their terms….” Among these defendants were Joseph Goebbels and Julius Streicher. Streicher was pardoned because, similar to the Gitlow case, the danger was minimized; Streicher was dismissed as a mere “fanatic.” After the famous Munich putsch, Hitler was sentenced to five years in prison minus his pretrial jail time; he was then released before the completion of his sentence, having served only eight months. And though initially banned from public speaking for the remainder of his sentence, the ban was later lifted in the states of Saxony and Bavaria. In the context of cases involving anti-republican agitation, which also often involved anti-Semitic speech, Doskow and Jacoby explain that the fines imposed “were wholly ineffective as deterrents,” and that “[t]hey came to be regarded by agitators as business expenses, to be reckoned as part of the cost of continuing a profitable enterprise.”⁴⁵ Overall, the authors conclude that “the ineffectiveness of legal prosecution was not due to the weakness of the law itself.” Rather, “in the hands of willing prosecutors and sympathetic judges the existing code would not have been found wanting as an adequate legal instrument.”⁴⁶

But perhaps not. There were voices, free and willing, raised in opposition, but they also were not effective. A chief organ of opposition, The Munich Post, “specifically aimed its attention [at] Hitler, the odd man rising to power” in the Nazi party of the 1920s. Overall, “Hitler’s true character was made painfully clear in newsprint on a regular basis for at least twelve years before he ruled the country.” Despite strenuous opposition from The Munich Post, “the world ignored the desperate warnings.”⁴⁷

As a final point it may be added that the courts themselves contributed to the freedom of speech enjoyed by the Nazis. Through a series of “fine distinctions” about the relevant section on blasphemy and insulting behavior toward “any religious community” (Section 166 of the Penal Code), the courts’ judicial interpretation, “with its narrow refinements, enabled the Nazi propagandists to develop a technique for making blasphemous statements without being subject to prosecution.”⁴⁸ Was this another example in which the judicial system engaged in a “pure staging of superficial judicial rationality”?

However, Professor Turley still insists that in the Weimar Constitution “the right to free speech was far more abridged than our own First Amendment. Indeed, it had many of the elements that the left has pushed in Europe and the United States, including allowing crackdowns on disinformation and fake news.” He adds that Article 118 of the Weimar Constitution guaranteed free speech but added that it had to be “‘within the limits of the general laws.’ It did not protect statements deemed by the government as factually untrue and speech was actively regulated.”⁴⁹ But if we go to his reference in support of these statements, we find there is much more to the story about the constitution and the general laws in Germany.

That reference is Professor Jouanjan who treats in detail the meaning of the phrase “general laws,” mentioned by Turley, as discussed by German legislators in the 1920s and ’30s. In a May 24, 1930 ruling, the phrase was taken to mean “‘[a]ny law not directed against an opinion as such, that does not forbid an opinion as such, should be considered a general law…”’ for the purposes of Article 118, not simply a law formulated in abstract and general terms. Opposed to the general law concept is that of a special law (Sonderrecht), a law of the exception, which restricts or forbids the expression of a particular opinion. “At the time, this law applied in large part to communist and fascist opinions.”⁵⁰ Given the historical context this is not surprising. Germany had lost the Great War, its government had been overthrown and there followed a time of brutal civil war during which the communists tried to take over the government and later, in the 1920s, the National Socialists arose but failed in the 1923 Putsch in Bavaria. It is not wonderful that German legislators were fearful about allowing these two groups to propagate their views. This may also serve to explain the lack of will in prosecuting violations of the speech restrictions. The war had led to the diminution of the authentic German community. The Weimar Republic inherited a German society which was fragmented, polarized, and politically paralyzed between extreme groups at the expense of a healthier middle class. Kendall’s “public truth” lacked adequate voice. The underlying causes of these problems harken back to at least the 19^th century, but in Weimar they again became critical. Perhaps Doskow and Jacoby deserve the final comment in this context: “[T]he value and possible effectiveness of judicial and administrative repression necessarily depend upon a number of elements that vary from one country to another, such as the economic situation and forces at work for its improvement; the extent and effectiveness of education and counter-propaganda; and the political traditions and popular sentiment which in any democratic state set definite limits upon the severity of both laws and punishment.”⁵¹

Still further, according to Professor Jouanjan, the meaning of “general” (or “universal”), in German “allgemeine” (or Allgemeinheit), must be understood in the Enlightenment manner intended for it, “as the set of conditions under which community life of free individuals is possible; that is, ‘[v]alues of [the] society, public order and safety, [and] concurrent rights and liberties of others.’ The ‘general laws’ are thus basic norms that make up the community and protect collective values. They have a ‘value greater than that of the basic rights’ and, therefore, greater than that of freedom of opinion, since these values are the very foundation of civil and political society.”⁵² This is nothing less than the German version of Kendall’s “public truth,” or at least something very close to it. Lo and behold, society is allowed to defend itself and its values against those who would destroy these by the abuse of free speech. That Weimar did not live up to the promise of its constitution is clear, but so is its intention. Theory and practice were conflicted.

Critical Rationalism and Viewpoint Intolerance

We can now elaborate on Professor Kendall’s fourth point about the need in a Millian society to avoid “concludability” and its effect on “tolerance.” In order to practice tolerance in the pursuit of truth one must believe in the existence of Truth, not merely partial truths. Yet this obvious conclusion is what is denied by adherents of absolute free speech today. We may take again Mr. Lukianoff of FIRE to illustrate the matter. He claims not to believe that truth is a single objective reality, but rather involves an “iterative ongoing process…. It refers to an approach toward a better approximation of reality, not an arrival at complete understanding” (original emphasis). Of course the iterative process proceeds indefinitely, and may never arrive at its asymptote. Any existing truth can be dealt with only indirectly, as he postulates in medieval fashion, by a via negativa; there can be no positive affirmation.⁵³ One begins to suspect adherents of this view do not truly want to arrive at any final conclusions, for that would mean throwing out previously tolerated falsehoods and so end absolute “viewpoint tolerance.”

This ambiguity about “truth” – partial, limited, elusive – is just right to accommodate “viewpoint tolerance” and absolute free speech. And it is vital because only then can we understand the world, it is said. “Too often,” says Mr. Lukianoff, “we focus on evaluating whether or not an individual’s factual assertions are true, yet miss the really important truth – the fact of the existence of that individual’s perspective.” Emphasizing the mere existence of the perspective, not its factual correctness or approximation to truth, places all perspectives on an equal footing – for they all equally exist, even this perspective. This, then, is the basis for their inclusivity. But, somewhat incongruously, the validity of this partial truth is not only assumed but is given importance. It is the one perspective which determines the attention given to all other perspectives; it is both inside this set of views and yet stands outside as an evaluator of them. Having it both ways is, of course, the nature of the partial-truth/partial-non-truth (or lie) technique – as if it could transcend itself. All this is in contrast to the Great Tradition where exclusivity is the prerogative of Truth, where no such conundrum arises.⁵⁴

And yet this conundrum, or irrationality perhaps, has been around for some time even if it seemingly increases in vigor. German economist Wilhem Roepke long ago spoke about the liberalism of his day in Weimar and beyond and noted the problem: “It is obvious,” he wrote, “that this absolute tolerance even towards intolerance, this intransigent dogmatism of the liberals, which gives a free hand to all trouble makers and agitators, thereby condemning itself to death with open eyes, must ultimately reduce ‘pure democracy’ to the defenseless victim of anti-liberalism, to a sort of gambling club whose rules include their non-observance.”⁵⁵

One might think this is purely a theoretical point or one no longer actually believed. But that would be wrong. This is still a concrete belief tenaciously adhered to. One can see it in the interview with UK Parliamentarian Nigel Farage of Britain’s Reform Party. According to Mr. Farage, implicitly, there certainly have been changes from a standard of conservative Christian values of the past to the present values of the UK Reform Party. In a recent interview Farage criticizes segments of the Muslim population for not holding to these current British values. Two of these values are: not being feminist enough to have women in public life and debate, and not tolerating homosexuality. Yet Mr. Farage endorses the value of tolerance. The interviewer asks him if he isn’t really violating this value because he is not tolerant of Muslims’ intolerance, just the very kind of thing Roepke was pointing to. The question assumes the absoluteness of a policy or political principle so that its unqualified application requires social or individual suicide, something the interviewer apparently doesn’t grasp. Farage dodges the question.⁵⁶

But this aberrant thinking also seizes Professor Turley. He writes: “The protection of free speech is far more challenging than its curtailment. Any measures to guarantee free expression must also balance the countervailing rights of groups and corporations, including their anti-free speech advocacy.” (emphasis added) ⁵⁷ Yes, one can see why this would be more challenging.

Professor Turley implicitly casts the issue as a choice on the classic but false horns of a dilemma: either we have a right, independent of the Constitution, i.e. so that the latter serves the former; or else the former serves the latter. This he calls a functionalist or relativist view. But a third alternative would pitch the matter differently. While the right of free speech is antecedent to the Constitution, and doesn’t exist to guarantee it, it still ought not to undermine the social order, ought not to destroy that which makes the right socially operative. Yet that is exactly what he and others are willing to do. How could such a group be trusted to have rational discussions about anything? 

Free Speech in the Era of Digital Technology

Mr. Fisher Ames, that beetling federalist from Massachusetts, as Russell Kirk called him, could complain in the early days of the Republic, that the press had not always been helpful in enlightening the confusions of public policy. “The press,” he said, “has left the understanding of the mass of men just where it found it; but by supplying an endless stimulation to their imagination and passions, it has rendered their temper and habits infinitely worse. It has inspired ignorance with presumption, so that those who cannot be governed by reason are no longer to be awed by authority.”⁵⁸ Mr. Jeffrey Tucker of the Brownstone Institute apparently also has reservations, for different reasons, about free speech, digital technology, and the internet. “I recall,” he writes, “the days of thinking government would never catch up to the glories and might of the market itself. I wrote several books on it, full of techno-optimism…. The new tech sector had a libertarian ethos about it…. They were the new technologies of freedom and didn’t care much about the old analogue world of command and control. They would usher in a new age of people power…. Here we sit a quarter-century later with documented evidence that the opposite happened. The private sector collects the data that the government buys and uses as a tool of control.”⁵⁹

The result is an “oppressive blob” which he calls “corporatism,” deliberately borrowing the term of the 1930s. Corporatism is neither capitalism nor socialism “but a system of private property ownership with cartelized industry that primarily serves the state.” Therefore, he argues, our former two conceptual categories of capitalism and socialism are no longer serviceable in the new age of techno-corporatism. “Coming to terms with this intellectually is the major challenge of our times.”⁶⁰

However, readers familiar with Wilhelm Roepke will recall that he already solved Mr. Tucker’s conceptual difficulty decades ago during a time of “corporativism.” People were searching for a way of avoiding the problems of the liberal economy, says Roepke, but without resorting to collectivism. “Corporativism,” however, was mere economic obscurantism. What is needed is not, as Mr. Tucker requires, a new conceptual apparatus for dealing with this problem, but for keeping the original concepts clear and distinct. Roepke wrote about this period that the professional associations flirting with corporativism were “unable to make a clear distinction between the legitimate and the illegitimate tasks of the professional associations,” and they jumbled together “things which should be kept strictly apart.”⁶¹ He then disentangled the conceptual confusions and was able to elaborate the principle of “The Third Way,” his vision of social and economic order.

And yet, Mr. Tucker seems confused or undecided in his views. In a later article he champions not merely free speech, but also the digital tools used. Commenting on the news coverage about the attempted assassination of Donald Trump, he points to the use of X (formerly Twitter) as instrumental in providing the free speech platform in which all sorts of claims were posted but where truth finally won out. “The wildest theories ever were permitted to appear, while others would debunk them with reasoned arguments. The readers could decide for themselves…. Posters grew ever more careful about posting claims that could not be verified….” He concludes this was a platform which had “created a culture of freedom combined with community-driven accountability.” Freedom is messy but it works, he says. “The lesson should be obvious. The answer to the problems of free speech is more of it.”⁶² In other words, the digital discussion cured the confusion it made, which is very much like Groucho Marx’s comment about the first man to combine spaghetti with bicarbonate of soda, “thus causing and curing indigestion at the same time” (from A Night at the Opera). The social prerequisites for responsible public discussion indicated by Kendall were not met, leaving the process inept and inefficient. No one speaks with authority, or else authority is not recognized. In the long run, the internet lends itself to swarms of uninformed or biased opinions which, like drones, can overwhelm reasoned ones.

And this discussion was a relatively simple one, subject to easy empirical observation. But moral questions, such as polygamy or monogamy, are of a different order. They may seem to involve empirical issues, such as the rate of child abuse under each marriage regime, but then we are faced with the question what constitutes “abuse,” and what are its causes. Both of these also involve value-based issues, issues of morality, religion, social identity and public truth. Will anarchic digital talk lead us to the right answers? Well, obviously not by themselves, and to his credit, Mr. Tucker refers to “community-driven accountability.” But it is an interesting question to determine how these standards of accountability for free speech were themselves established or “chosen.” An appeal to self-evident, objective truth? Or, were they worked out over time in socially complex ways which cannot themselves be subject to discussions which presuppose their prior validity? And so on it goes, and Mr. Tucker still leaves us in the woods.

From Kendall’s criteria for responsible public discussion, it’s clear that it’s a sign of social decay if one has to battle over largely extraneous matters that should be handled easily as mere emendations to the public truth; or, at the other extreme, to debate fundamental matters which should have been, or in fact were, secured long ago in the public truth. Indulging “wild theories” as Mr. Tucker expresses it, contributes to that dispersion of opinion which is at once a reflection of and a further cause of social decay, dispersion intensified by the power of that technology, the rapid spread and easy access to a world of national and international grocery store tabloids, the capacity for falsification, and surveillance, full of Fisher Ames’ “ignorance and presumption.” All things are open to debate repeatedly – things one thought were once settled. In the end, we must agree with Richard Weaver: “Man is free,” he writes, “in proportion as his surroundings have a determinate nature, and he can plan his course with perfect reliance upon that determinateness.”⁶³ There is, after all, no freedom if one has to fight for every position every moment… and that is probably the greatest harm of all.

If “community-driven accountability” for the digital world were understood in Kendall’s view as the “deliberate sense of the community,” even though it is doubtful that Mr. Tucker means it that way, we would be back in the traditional values of the public truth which would include social, as well as sometimes governmental, censorship at some level. The market self-correction of which Mr. Tucker speaks, should be preceded, as it would be in a healthy society, with the self-assessment of the value-encultured individual who is humble enough to determine whether he is qualified to participate in this discussion, and who may, practicing Madison’s “virtue,” recuse himself. But, such a high standard is difficult at the present time to see in the cloaca of half-lies so prevalent in that medium.⁶⁴ 

Their “Unshakable Will” 

The examples of the failure of speech restrictions mentioned above rested finally on the lack of will. In the case of the Nazis, and especially Hitler himself, it was just the opposite; it was a matter of a strong, domineering will. But it was more than mere pig-headedness. Albert Speer, Hitler’s architect and armaments minister, a member of the inner circle right down to the last days in the bunker, gives his own instructive, if very dark assessment, of Hitler’s “unshakable will.” Speer says that Hitler “made himself believe in his ultimate victory. In a sense he was worshipping himself. He was forever holding up to himself a mirror in which he saw not only himself but also the confirmation of his mission by divine Providence. His religion was based on the ‘lucky break’ which must necessarily come his way; his method was to reinforce himself by autosuggestion. The more events drove him into a corner, the more obstinately he opposed to them his certainty about the intentions of Fate. Naturally, he also understood the military facts. But he transmuted them by his own faith and regarded even defeat as a secret guarantee, offered by Providence, of the coming victory.” He had an “unshakable belief in his lucky star. He was by nature a religious man, but his capacity for belief had been perverted into belief in himself.”⁶⁵

Self-worship is the key to understanding, not merely Hitler, but all who replace Deity with themselves. A Luciferian pride makes one stupid, incapable of recognizing reality. One may start out with a knowing rejection of God’s truth and then, like Pharaoh, through a process of hardening of the heart, end up in moral imbecility. It is impossible to argue with the adherents of such a view; they are impervious to reason. But an otherwise healthy society will not allow itself, especially its young people, to be enticed to travel down this path. And that is the problem of all free speech absolutists. They do not know the nature of sin and through their excessive openness, destroy traditional values which in turn allows the extreme left, various stripes of cultural Marxists, to reshape public policy on the basis of that same moral imbecility and who are likewise impervious to facts – always transmuting them to suit the “narratives” of their fantasy. And then these narratives, being so fragile, must be protected against the truth. Hence, they must have censorship to protect their story. This is very different from censorship against those who would destroy the “public truth” any durable society must have. The one is from the bottom up and the other is from the top down. It is that top-down quality which libertarians rightly call “tyranny.” They are shocked and offended at it. But what do they have to oppose it? Their own moral unreality which is already disarmed by its inexcusable insouciance?

Final Thoughts

In his Life of Samuel Johnson, James Boswell recounts a conversation he had with one Dr. Adams who had given able answers to David Hume’s Essay on Miracles:

He [Adams] told me [Boswell] he had once dined in company with Hume in London; that Hume shook hands with him, and said, ‘You have treated me much better than I deserve;’ and that they exchanged visits. I took the liberty to object to treating an infidel writer with smooth civility. Where there is a controversy concerning a passage in a classick author, or concerning a question in antiquities, or any other subject in which human happiness is not deeply interested, a man may treat his antagonist with politeness and even respect. But where the controversy is concerning the truth of religion, it is of such vast importance to him who maintains it, to obtain the victory, that the person of an opponent ought not to be spared.

Boswell adds that such an “infidel writer” should be seen as a “robber,” and looked upon as “odious.” To drive his point home, he gives an example: “An abandoned profligate may think that it is not wrong to debauch my wife, but shall I, therefore, not detest him? And if I catch him in making an attempt, shall I treat him with politeness? No, I will kick him down stairs, or run him through the body; that is, if I really love my wife, or have a true rational notion of honour.”

Roepke thinks the same. He says all value reflexes in society can be traced back to two main ones: reverence, and unqualified indignation. “To have these two reflexes at one’s command is to possess a scale of values where the valuable is as securely fixed at the top as the worthless is at the bottom. Society, knowing instinctively when to doff its hat, must know with equal certainty when to put it on indignantly without wasting another word. When it is no longer sure of the right moment for either, when opinion on ultimate matters is beginning to waver, it is time to sound the alarm.”⁶⁶ And we might as well add to Roepke a pointed insight from the sagacious Edmund Burke: “[I]n general, it is not right to turn our duties into doubts. They are imposed to govern our conduct, not to exercise our ingenuity; and therefore our opinions about them ought not to be in a state of fluctuation, but steady, sure, and resolved.” But fluctuation is exactly what happens when duty is only one of many options. Multiplicity trivializes its meaning, and robs it of social significance and the character of obligation. It becomes disposable, and one cannot be faithful to a disposable duty. In a similar vein, Kendall argues that the American people carried forward the values of the Great Tradition more or less intuitively; they knew it in their “hips,” he said.⁶⁷

In this context Kendall could defend a limited free speech… free, even widely free, but not on everything. So far as the First Amendment goes, he preferred free speech. But like the principle that one is innocent until proven guilty, he believed it was possible sometimes to overcome that preference, and justify censorship. And so did most Americans of his day. To illustrate, he recounts a survey where Americans were asked if they would allow a communist to speak to their children in public schools or allow a communist book to be placed in the public school library. A good two thirds of respondents showed their healthy reflexes and said “no” in both cases. Furthermore, Kendall says, there was no evidence that these folks would have been disturbed to learn that “the Supreme Court says that the Fourteenth Amendment says that the First Amendment says they can’t do anything legally to (e.g.) prevent the Communist from speaking.” As a constitutional lawyer, he never was “much impressed by the constitutional logic by which that particular bit of juggling was accomplished….” In fact, Americans have never had a tradition of absolute free speech. In a (partially) jocular vein, he writes: “One begins to suspect that the true American tradition is less that of our Fourth of July orations and our constitutional law textbooks, with their cluck-clucking over the so-called preferred freedoms, than, quite simply, that of riding somebody out of town on a rail.”⁶⁸ In today’s far worse state of decay, his description sounds more sober than jocular.

Kendall’s support of (relative) free speech is an integral part of his view of the “deliberate sense of the community” which in turn is informed by the “public truth,” which itself is the political expression of the particular American historical experience of transcendent revelation. And it is fidelity to that truth which keeps Madison’s “virtuous people” virtuous. It cannot be the proper subject of constant attacks by free speech absolutists. This is why he denies that the United States is committed to the proposition, through its Constitution, that “we ‘do not know the truth, except in comparative terms.’” Instead, he affirms: “We believe that the proposition ‘Communism [read: cultural Marxism/wokeism today] is evil, and must be prevented’” is final and final precisely because of a ‘value’ infinitely higher than that of ‘the State’ – this State, or any State. And any time the ‘constitutional order’ gets in our way, as regards combatting the evil of Communism, we shall seek a change in the constitutional order – not for ‘reason of Church,’ or ‘reason of State’ or ‘constitutional reason of State,’ but for reason of God.”⁶⁹ Even if only a remnant remains holding onto and speaking for the public truth, it is still the deliberate sense of the authentic American community. And to understand that makes Kendall so very helpful in our present circumstances.

Endnotes

 1. Nash, George H. 1979. The Conservative Intellectual Movement in America/Since 1945. Basic Books, Inc. Publishers, New York, pp. 227-248. For other readings about Kendall see: John P. East, “The Conservatism of Willmoore Kendall,” in The Imaginative Conservative (June 20^th, 2016); Daniel McCarthy, “Willmoore Kendall: Forgotten Founder of Conservatism,” in The Imaginative Conservative (March 29^th, 2017); Joshua Tait, “The Possibilities and the Impossibilities of Willmoore Kendall,” in The University Bookman (Dec.16, 2018); David Frisk, “Remembering Willmoore Kendall,” in Chronicles (April 2020).

2. Kendall, Willmoore. 1985. The Conservative Affirmation in America. Gateway Editions, Chicago, p. 105.

3. Ibid.

4. Ibid., p. 106.

5. Ibid., p. 113.

6. Ibid., pp.110-111.

7. Ibid., p. 107. In his introduction to John Taylor’s Arator, University of Dallas Professor M.E. Bradford describes the early American view of itself as the corporate society of an agrarian republic, where “liberty and unity consort well enough.” Inequality of status and function were justified to all because of the “anterior identity dependent on the natural roles binding levels and orders into a tribal whole… (p. 19). “Anterior identity” was, of course, another way of identifying the “public truth.”

8. Ibid., p. 116.

9. Ibid., pp. 115-116.

10. Ibid., p. 117.

11. Ibid., p. 116.

12. Ibid., p. 205.

13. Nash, op. cit., p. 240.

14. Kendall, op. cit., pp. 42-43. The context in which Kendall discusses these points is his exposition of the “two majorities.” He distinguishes between, say, a presidential majority giving the candidate a positive mandate for some policy action by means of elections, and Madison’s more subtle form of majority rule which is not necessarily tied to elections. It is rather tied to a process of “continuing dialectical relationship between the virtuous men and their constituents.” For a full treatment of this view see Kendall, op. cit., pp. 21- 49.

15. Nash, op. cit., p. 242.

16. Ibid., p. 407.

17. Ibid., pp. 243-244; cf. pp. 215-16.

18. Kendall, op. cit., p. 101.

19. Bozell, L. Brent. 1966. The Warren Revolution. Arlington House. New Rochelle/New York, 309.

20. Ibid., p. 18.

21. Turley, Jonathan. 2022. “Harm and Hegemony: The Decline of Free Speech in the United States,” in the Harvard Journal of Law & Public Policy, Vol. 45, Issue 2 (July), pp. 600-601.

22. Berns, Walter. “Re-Evaluating the Open Society,” in Order, Freedom, and the Polity: Critical Essays on the Open Society. 1986. University Press of America/The Intercollegiate Studies Institute, Inc. Lanham, MD, pp. 31, 32. Put another way, Berns’ expression “publification of sex” implies that privacy is an essential element of liberty. The “freedom” to publish pornography, to make what is in its nature personal and intimate public, is destructive of the very privacy essential to that liberty which libertarians cherish.

23. Jouanjan, Oliver. 2009. “Freedom of Expression in the Federal Republic of Germany,” in the Indiana Law Journal, Vol. 84, Issue 3, pp. 877-878. Since Professor Turley uses Charles Dickens’ A Tale of Two Cities in his Emory Law Journal article (see below), one can’t resist the comparison here of “superficial judicial rationality” with the (fictious but realistic) court case of Jarndyce and Jarndyce in Dickens’ Bleak House. The case dragged on for many years to the detriment of the would-be beneficiaries. Dickens writes that the members of the court were “mistily engaged in one of the ten-thousand stages of an endless cause, tripping one another up on slippery precedents, groping knee deep in technicalities…”

24. Humbolt, Wilhelm von. 1969. The Limits of State Action. Liberty Fund. Indianapolis, pp. xvii-xviii, xxix – xxxvi.

25. Jouanjan, op. cit., p. 883.

26. Turley, Jonathan, “The Loadstone Rock: The Role of Harm in the Criminalization of Plural Unions,” in the Emory Law Journal, Vol. 64, Issue 6 (2015), pp. 1905-1975, p. 1910.

27. Turley, “Harm and Hegemony,” op. cit., p. 576.

28. Ibid., p. 699.

29. Turley, “Loadstone Rock,” op. cit., p. 1944.

30. Ibid., pp. 1908-1909.

31. Ibid., p. 1910.

32. Ibid., p. 1974.

33. Kirk, Russell, “Libertarians: the Chirping Sectaries,” in Modern Age, vol.25, no.4 (1981), 347.

34. Turley, “Harm and Hegemony,” op. cit., p. 699.

35. Ibid., p. 701.

36. Meyer, Frank S. 1962. In Defense of Freedom: A Conservative Credo. Henry Regnery Company. Chicago, p. 52. Of course, harm from interdependence can occur over time, also. What starts out as voluntary may through independent choices end up as obligatory. Individuals may choose to wear medical devices to monitor their health, but if these become pervasive, it will be difficult to opt out, especially if private health and insurance companies assume everyone uses them and craft their policies accordingly. The cost of opting out then may be prohibitive even if nominally allowable. The same story holds for government agencies. (“No medical coverage for John Doe, unless he wears a continuous monitoring device,” etc.)

37. Kendall, op. cit., 105fn15.

38. Ibid., p. 107.

39. The following quotations from justices Sanford and Holmes are all from Gitlow, unless otherwise indicated. U.S. Reports: Gitlow v. New York, 268 U.S. 652 (1925). | Library of Congress.

40. Holmes could have learned something from Lenin and the Bolsheviks about small minorities successfully staging a revolution. “I assert,” Lenin claimed, “that it is far more difficult to catch ten wise men than it is to catch a hundred fools.” He insisted that the party membership be restricted to a small number of highly discipled members. See “What Is to Be Done?” (1901-02). Quoted in, Pageant of Europe, Sources and Sections from the Renaissance to the Present Day. (Rev.). 1947. Raymond P. Stearns. Harcourt, Brace, and World, Inc. New York, p. 761.

41. Libertarians speak of the “conditions of freedom.” But it is also necessary to have the “conditions of virtue” which require the moral order of the individual soul as well as of society. Some like to quote John Milton’s Areopagitica in which he decries those who hide from temptation and call it virtue. We are, however, admonished to flee temptation, not see how far we can press matters. Another condition of virtue which registers genuine harm is the recognition, contrary to the pure libertarian, that some institutional arrangements are more than mere agglomerations of individuals. Among these are marriage, family, and church which are based on actual unity and identity. One need only think of the full meaning of taking communion to grasp the point.

Others influenced by Marxian moral skeptics still deny that Kendall’s public truth resolves moral questions. That is because they do not believe in God, or at least, not in the Christian God, not in divine revelation. Hence, they keep finding conflict everywhere, all the time. The point of their “analyses” is social destruction since they do not believe in truth, only in power (again, except for this truth). The difference between genuine “oughtness” and its deviation in their view is minimized and treated the same as anything else that may threaten the existing power structure.

It is interesting to observe also that the pure libertarian and the communist have one point in common. They both believe, like Sorel’s myth of the general strike, in a magic ordering of the world which never really happens but which is ideologically useful. In the early days of the Russian Revolution the communists (Bolshevists) of the trade unions looked for samotek, which is the Russian word for “spontaneous development,” and for “spontaneous socialization” of the workers. These concepts, understood abstractly, are very much like the concept of spontaneous market order held by the likes of Frederich von Hayek. Of course, Mill uses similar terms in his famous essay On Liberty. The effect of the myths is to obviate any need for an authority outside of man and to overlook the moral and social pre-requisites for economic and social order. See Uwe Brügmann’s Die russischen Gewerkschaften in Revolution und Bürgerkrieg 1917-1919 (Europäische Verlagsanstalt, Frankfurt am Main) 1972. See also Murray Rothbard’s take on Hayek in this regard in “Frank S. Meyer: The Fusionist as Libertarian Manqué” in Modern Age, vol. 25, no. 4 (Fall 1981).

42. “Listen Carefully it’s Actually Much Darker”: How the Left is Framing Free Speech as a Front for Fascism – JONATHAN TURLEY, February 18, 2025.

43. Strossen, Nadine and Greg Lukianoff. “Would censorship have stopped the rise of the Nazis?” (Part 16 of answers to arguments against free speech.) April 27, 2022. Foundation on Individual Rights in Education (FIRE). Nadine Strossen is a former professor of law at New York Law School and a past president of the American Civil Liberties Union (ACLU). She is a senior fellow with FIRE. Greg Lulkianoff is a lawyer and the president and CEO of FIRE.

44. Doskow, Ambrose and Sidney B. Jacoby, at Anti-Semitism and the Law in Pre-Nazi Germany – DocsLib, p. 502. It is interesting that in 1901, a lower court had acquitted an anti-Semitic speaker “who had attempted unsuccessfully to incite his listeners to violence against the Jews.” The court “had found that the speaker’s educated audience had not taken him seriously.” (Again, this dismissal reminds one of Holmes’ view in Gitlow.) But the German Supreme Court held that the lower court had misinterpreted the relevant section of the law and that “the possible future effects of the speech upon the Jews as well as the Christian audience should have been taken into consideration” (added emphasis). The lower court’s implicit view that there was no “clear and present danger” (to borrow from the American language in these matters) was countered by the higher court’s thinking that the present (justifiable) fear of a possible future violation of the public peace already endangers that peace. See p. 503.

45. Ibid., p. 507.

46. Ibid., p. 509.

47. S. Twogood, The Munich Post: its undiscovered effects on Hitler.

48. Doskow and Jacoby, op. cit., pp. 504, 505. It is often pointed out that the Nazi defendants used court cases to further their cause because in their defense addresses they continued promoting their outrageous propaganda. Whether a defendant’s speech in court is actually the same thing as his speech out of court may be doubted. But if it is, it only shows the nominal character of the censorship. If the courts had been serious about upholding the law, they would have done something like the Massachusetts court did in the Fanny Hill case mentioned above and allow for a defense which did not itself constitute another instance of the violation of law which the case was about. Repeating the crime in court is not a justifiable defense. But it appears that in such cases, courts became a forum for free speech. The use of civil proceedings for injunctions, however, by the Jewish Central Union had the advantage that “the proceedings did not become occasions for the defendant, through reliance on the defense of truth, to use the courtroom as a forum for the continuation of his attacks.” (p. 507)

49. Turley, op. cit., ‘Listen Carefully.”

50. Jouanjan, op. cit., p. 874.

51. Doskow and Jacoby, op. cit., p. 509.

52. Jouanjan, op. cit., p. 875.

53. Strossen, Nadine and Greg Lukianoff. “Does free speech ‘inevitably’ lead towards truth? Is the ‘Marketplace of Ideas a broken metaphor?” (Part 13 of answers to arguments against free speech.) March 18, 2022. Foundation on Individual Rights in Education (FIRE).

54. Ibid. The devaluing of factual correctness in preference to the existence of a perspective parallels the Eastern thought of devaluing morality in favor of the metaphysical problem of being where everything which exists is equally good.

55. Roepke, Wilhelm. 1942. The Social Crisis of Our Time. Transaction Publishers, New Brunswick, New Jersey, p. 50.

56. One can see the interview here: Nigel Farage Responds to Criticism Over Anti-Muslim Claims (youtube.com.) Start at c. 4:20. For information on the UK Reform Party platform see Reform UK.

57. Turley, “Harm and Hegemony,” op. cit., pp. 609-610. For the importance of this logical conundrum, see Norman Giesler’s Philosophy of Religion (1974), Zondervan Publishing House, Grand Rapids, Michigan, pp, 150 and 212. Lest anyone say this free speech absoluteness must be tolerated, otherwise, remember Socrates, we may refer to Kendall’s view of the great man. Socrates preached in effect the destruction of the city. Though given every opportunity to defend his view, he did not convince the Athenian leaders. Summarizing Kendall’s view of this famous exchange, Nash writes, Socrates “refused to become a modern liberal asserting his absolute ‘right’ to speak regardless of other considerations.” See Nash, op. cit., p. 234.

58. Allen, W. B. (ed.). Works of Fisher Ames. Liberty Classics. Indianapolis, p. 134. The essay is interestingly titled, “The Dangers of American Liberty.”

59. Tucker, Jeffrey A. How Did American Capitalism Mutate Into American Corporatism? ⋆ Brownstone Institute, March 15, 2024.

60. Ibid.

61. Roepke, op. cit., p. 94. It is interesting that in his paper on the power of digital tech businesses, Mr. Tucker refers to the buildings which Amazon and Google have built. The pictures are found in these links (Google moves to add more space at Reston Station – Washington Business Journal and Amazon building in Arlington, VA – Search.) While neither building has a very humane appearance, it is striking, but perhaps not surprising, that the new Amazon building looks very much like the pictures of the Tower of Babel. (Tower of Babel pictures – Search.) A point which should speak for itself.

62. Tucker, Jeffrey. During the Crisis, Free Speech Worked Brilliantly ⋆ Brownstone Institute, July 15, 2024. If the process of self-correction from free discussion Mr. Tucker refers to is to mirror in some way the self-adjustment of a free market towards equilibrium, then the pre-requisites for socially responsible behavior must also be met, conformity to which is not optional. Humility and intelligent understanding are essential to any such discussion.

63. Weaver, Richard M. 1953. The Ethics of Rhetoric. Henry Regnery, Co. Chicago, p.173.

64. “True humility,” said Burke, “the basis of the Christian system, is the low, but deep and firm foundation of all real virtue.” Such a view applied to the practice of free speech would have incalculable benefits for American society.

65. Speer, Albert. 1970. Inside the Third Reich. The Macmillan Company, New York, p. 357.

66. Roepke, op. cit., p. 12.

67. Nash, op. cit., p. 242. Dr. Benjamin Alexander (author of Good Things Out of Nazareth) writes to me the following thoughts about Professor Kendall’s work:

“I think Kendall needs to be put in the line of those like Pope Benedict XVI defending the foundational tenet of Wester philosophy going back to Plato and Aristotle. Pope Benedict, steeped in years of reflection, prayer, and deep thinking, gave our times a remarkable phrase: the “dictatorship of relativism.” This is a rich, pithy concept that reveals the recent displacement of the non-negotiable reality of an objective moral order which for centuries has been an unshakable metaphysical reality first enunciated by Plato and Aristotle against the Sophists. From Aristotle’s “unmoved Mover” to the Gospel writers, especially St. John and his majestic opening sentence, (“In the beginning was the Word, and the Word was with God, and the Word was God.”), the best of the Western tradition has insisted on an objective moral order, from an independent, holy God. Such thinking was axiomatic and canonical to Western thought until the advent of Benedict’s calling out “the dictatorship of relativism.” Benedict means that the new objective truth, unlike the insistence of Plato Aristotle and St John, among many others, is that there is no independent Truth. Nowadays we hear about different versions of truth with formulations like “that’s your truth.” The concept has penetrated contemporary counseling where radically contentious family members are encouraged to be content with their own facts and reality in disputes that often go unresolved. And what’s even more troubling is sometimes wild adherents of versions of truth in public life do not want to talk to anyone who departs from their version of reality. We are rapidly losing what is known as the “Socratic moment.” Plato’s Republic begins with Socrates going “down” going into the city to engage the professional intellectuals. Both Socrates and the Sophists were willing to engage in dialogue and debate in cases of profound disagreement in pursuit of foundational truth. This kind of engagement is rapidly disappearing today.”

68. Kendall, op. cit., pp. 81, 82.

69. Ibid., p. 220.

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