An Ecological Theory of Free Expression (with Gary Chartier)

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00:06 Trevor Burrus: Welcome to Free Thoughts. I’m Trevor Burrus.

00:09 Aaron Powell: And I’m Aaron Powell.

00:10 Trevor Burrus: Joining us today is Gary Chartier, a distinguished professor of Law and Business Ethics and Associate Dean of the Tom & Vi Zapara School of Business at La Sierra University. He is the author of many books. The latest is An Ecological Theory of Free Expression. Welcome to Free Thoughts, Gary.

00:25 Gary Chartier: Great to be here.

00:27 Trevor Burrus: Your theory of free expression, as evidenced by the title, is ecological. So what does that mean?

00:35 Gary Chartier: Yeah, so it means that free expression happens in a context, right? It means that, on the one hand, a whole set of social institutions make free expression possible and realize the benefits that free expression brings about and, on the other hand, free expression itself serves to promote and nourish a whole set of social institutions and networks of relationships.

01:01 Trevor Burrus: So it’s not, it’s not just… You come at it from a lot of different angles in the book, it’s not just one argument, it’s a bunch of different things together that create the argument for free expression.

01:10 Gary Chartier: Yeah, a bunch of different considerations all fit together and a bunch of different kind of nodes in a network or a set of networks all contribute to making it happen.

01:22 Aaron Powell: Is there a main, I guess, underlying moral theory that you’re operating within or drawing from?

01:29 Gary Chartier: Yeah, so the book proceeds, as a lot of my work does, from within a particular strand of the natural law tradition. It’s rooted in the idea, kind of what I hope is a recognizably Aristotelian idea, that what we should be interested in when we choose is choosing wisely in ways that enable us and others to flourish, and I think free expression plays a pretty crucial role in both sort of expressing, if you will, our flourishing and making that flourish possible.

02:04 Trevor Burrus: And in to that you create a few principles that you said four of which are important here. And I was going to go through what some of these principles are. One of them, you call the principle of recognition, what is that?

02:16 Gary Chartier: Yeah, so the idea here is that in at least the kind of Aristotelian natural law theory I’m working with, and I don’t claim, by the way, that any of this theory is particularly original with me, but in the kind of theory that I’m working with, I want to emphasize that when we’re choosing, a sensible choice or a rational choice, if you will, a reasonable choice, at any rate, is a choice for real goods. So the principle of recognition means ultimately, if a choice is reasonable, it’s a choice in pursuit of friendship or aesthetic experience or knowledge or something that actually matters.

02:52 Aaron Powell: So I can ask right now, ’cause you use three different terms, is there a difference between a sensible choice, a rational choice and a reasonable choice?

03:03 Gary Chartier: If we’re talking with economists or rational choice theorists there absolutely is. The word rational obviously has in that context a pretty specific technical meaning that translates into something like a concern particularly with instrumental rationality. In other contexts probably, we don’t necessarily use rational and reasonable, for instance, in ways that sharply contrast with each other, but probably to be safe here, let’s say reasonable.

03:34 Trevor Burrus: And you have the principle of respect.

03:37 Gary Chartier: Yeah, the principle of respect is a natural law principle, but it’s one that is very parallel, for instance, I think, to Kant’s formula of humanity, and I cache it out as “don’t purposefully or instrumentally injure.”

03:53 Trevor Burrus: Other people. Or at least…

[overlapping conversation]

03:54 Gary Chartier: In fact it’s unreasonable to purposefully or instrumentally injure yourself too, as Kant would have said with respect to the formula of humanity. But that’s not what I’m focused on here.

04:01 Trevor Burrus: And the principle of fairness?

04:05 Gary Chartier: Again, I think, basically a parallel with Kant’s formula of universal law, the idea is to act in a way that is consistent with principles you’d be willing to generalize.

04:20 Trevor Burrus: And then finally the principle of commitment.

04:24 Gary Chartier: It helps to make commitments. We can organize our lives effectively by making commitments. I wrote a whole book about that called The Logic of Commitment. The idea here is that not only are interpersonal commitments, what we often talk about as, say, as promises or whatever important, but also just personal commitments, what we set priorities for ourselves that this may be an effective way of giving structure and meaning to our lives.

04:46 Aaron Powell: So then how do these come together to get us to freedom of expression?

04:52 Gary Chartier: So the most crucial role they play, though not the only one, I think, is in providing a grounding for an account of property rights. So while there certainly are approaches to free expression that take property seriously, they haven’t been the most common. And so I deliberately start out by spelling out in very rudimentary terms my theory of property, which suggests that a whole host of considerations, having to do with how our lives go well can, in light of these principles, yield a set of what I call baseline rules for how we handle the physical objects in our lives, and that those then yield, in turn, kind of robust property rights. Respect for those robust property rights provides, I think, a really solid foundation for protecting freedom of expression.

05:47 Trevor Burrus: And that’s just sort of to establish who can make the rules in the classic sense of my house, my rules, I can’t go into Walmart with a shirt that says F Walmart and then claim the First Amendment is violated if they kick me out.

05:58 Gary Chartier: Absolutely.

06:00 Trevor Burrus: But your theory, well, it doesn’t only apply to government. You say a few times in the beginning of the book, that as from an anarchist standpoint you regard the Constitution itself as not terribly binding, I guess. It also applies to non-​government entities to some extent.

06:16 Gary Chartier: Yes, I want to be really clear about what I am and am not saying there. I think that the use of force is really the source of a crucial dividing line here. When we talk about legal constraints and legal protections we’re talking, I think, fundamentally about when force is and isn’t appropriately employed. And I absolutely don’t want to see actors that aren’t using force subjected to force to somehow make them conform with my ideal for free speech. But I argue that there are moral reasons why a variety of non-​governmental institutions certainly might want to take free speech, free expression more generally, seriously. And so why we ought to be concerned about what happens in the context of those sorts of associations, even if we recognize at the same time that they ought to have a legal right to, as for instance, with your Walmart example, constrain how their property gets used.

07:18 Trevor Burrus: It’s also important that you define injury, and one of the longer chapters of the book actually gets into the question of what is the kind of injury that we’re concerned with, and this goes back to what you just said about force, that it’s the question of whether or not offense or other types of linguistic injury, expressive injury, are such injuries that require law to fix them and you think that that’s not true.

07:44 Gary Chartier: Yeah, I think it’s a good idea to have a bright-​line rule that delineates what can and can’t be the subject of legal penalty. Again, I want to really emphasize, because I think this is something we can easily skate past, that law and morality are hardly co-​extensive and there are all kinds of things that people do that might be in various ways deeply wrong that we nonetheless don’t want the law to get involved in dealing with. And I suggest that at least one simple approach, for which I try to offer several overlapping reasons, would be an approach that says that what the law ought to be concerned with, what legal penalties ought to be concerned with, is the use of force against people’s bodies and stuff. And so, I try to spell out in this chapter on injury first of all then a model of what kind of injury the law ought to be concerned with and then apply that to some claims that are sometimes made about injuries that might result from expressive activity.

08:50 Aaron Powell: That claim that you just made about there are plenty of things that we think are deeply wrong that we don’t think the law should address or try to rectify, you said that this is something that we all accept, but is that true? It seems like, at least in the United States, both the traditionally conservative view and the progressive left’s view would simply reject that claim, would say that if something is wrong, then the law ought to prohibit it. If something is good in the case of, say, like nuclear families, or popular conservative or whatever else, diversity, then the law ought to subsidize or encourage it. Am I overstating the case there, or if I’m not, what’s wrong with that idea, that the law is there to enforce moral standards?

09:52 Gary Chartier: Yeah, so, you’re absolutely right. I don’t think you’re overstating the case that there are indeed people who want to talk in those terms. I think I was first and foremost probably responding on a visceral level to people we might encounter sometimes in libertarian circles who seem to think that if one has made the case that something ought to be legally permissible, one has at the same time made the case that it ought to be morally permissible and therefore no moral criticism of it is appropriate. And I get very frustrated with that view, but you’re quite right that on the other side there’s certainly the view that once we know that something’s morally objectionable it must follow that we ought to do something about it legally.

10:33 Gary Chartier: And so it seems like the kind of response to that I’d want to make at least looks something like this, that we have, when the law is involved in sanctioning something or otherwise either incentivizing it or disincentivizing it, what’s involved is the use of force. That’s what distinguishes the legal response from some other sort of response. And force, I think, is special, force is different. Not only because we have good reason to take people’s autonomy seriously, not only because we have, I think, good reason to take antecedent rights with respect to people’s bodies and property seriously, for reasons I try to spell out. For a number, then, of background reasons that are purpose-​independent, that are content-​independent, we, I think, have reason to respect certain kinds of limits on what can be done to people. And if we have reason to be concerned about, and thus to limit, the use of force, then I think that provides a pretty solid reason to avoid thinking that the law is a kind of universal fix-​it.

12:08 Trevor Burrus: In terms of the use of force here, it’s of a specific sort, because I assume in terms of private actors using force against expression. For example, to use an example, you kind of bring up in the book that if someone came into my house and started playing a movie with a projector on the wall that greatly offended me, could I physically throw them out of my house?

12:33 Gary Chartier: Of course, yes, of course you could. I mean, I hope you wouldn’t decapitate them or maim them in the course of doing it, but sure.

12:40 Trevor Burrus: But you also add the point that that’s not so much about the movie, the content of the movie is not the harm as much as the property right. Because if he came in and started playing a movie that was just a black square I could also throw them out, right?

12:54 Gary Chartier: Yeah, absolutely.

12:57 Trevor Burrus: Now, so expression does not constitute a legally cognizable injury. But of course, that raises questions of fraud, for example. What about fraud?

13:06 Gary Chartier: Right, when I say it doesn’t constitute an injury, I mean that in a pretty narrow way, So, it might well be, for instance, that, let’s say I lie to you, and when I lie to you I am, just in virtue of the fact that I’m in one way or another messing with your understanding of the world, messing with your cognitive faculties or whatever, that is an injury, and I don’t want to deny, of course, that deliberately deceptive expression might in one way or another end up directly injuring you. The question is, what’s legally cognizable? So, fraud involves the misappropriation of property, it’s an interference thus with your stuff and or I guess we can imagine a way in which it could be an interference in your body. But in any case, there’s a remedy for that, which involves obviously returning your stuff and doing whatever else needs to be done to get you back in the position you were before my illicit action. It’s not that in one way or another expressive activity can’t be involved with injuries. But I’m really interested in that section that you were just referencing in talking specifically about whether just the bare fact of expressing an attitude, you know, “Trevor’s a bozo,” whether that on its own constitutes an injury.

14:31 Aaron Powell: But how is that… You’re very concerned with force, but force is… The reason that we’re concerned with force is because of what it does to us, the kind of injuries that the application of force can create.

14:45 Gary Chartier: Yes.

14:46 Aaron Powell: And so, why is this a question, this freedom of expression and I guess all of this, why is this a question about force and why does force matter versus simply the question of injury?

15:00 Trevor Burrus: Degree of harm?

15:00 Aaron Powell: Right. So why are we concerned about particular kinds of injuries as opposed to just injuries as a whole?

15:04 Gary Chartier: I guess I’m primarily interested in this particular kind of injury because of what providing a legal remedy amounts to. A legal remedy is going to involve, in our current legal system, well, it might among imprisoning me; at any rate, it’s going to involve taking my stuff to compensate someone, something like that. And so, because the law itself is involved in the use of force, I’m interested in injuries that also involve force, because of the intuition that I have, which I certainly try to defend here and it was a serious…rather than intuition, that it’s a good thing to limit the use of force to those cases in which we’re responding to the use of force. I’m interested in this narrow subset of injuries because of the kinds of remedies the law can make available.

16:00 Trevor Burrus: Now, you bring up this question too in the book, which was popping into my head and I’m glad you address it. Post-​traumatic stress, the question of expression, triggering someone into a deep mental state or very harmful situation. Is that a different category of expression injury?

16:22 Gary Chartier: Yeah, I think… That’s difficult, and I don’t feel like my attempt in the book to just sort of kind of skate around it and talk about it briefly probably is adequate. Because I think we can imagine a case in which there really is, say, a pre-​existing injury that’s been done to someone, which can be a trigger for bullying, can be triggered expressively, and I don’t think we want to treat that as trivial. I’m nervous, of course, about the way in which worries about PTSD have then led to a much broader sort of culture of talk about trigger warnings and so forth, when these often don’t seem to do really with PTSD, but just have to do with things that bother people in various ways. And I’d really like to try to cabin the discussion of PTSD as narrowly as possible. I don’t, frankly, feel like I’ve reached a definitive conclusion about the best way to handle that. Except that, what I don’t want is a set of rules that are designed to deal with the organic injuries that can certainly be involved in PTSD that then are cast in a sufficiently broad way that they cover all sorts of other things and that they contemplate potential injuries that those engaged in expressive activity could reasonably anticipate. So, I think it’s a real concern and I guess I’m still puzzling it.

17:56 Trevor Burrus: Well, it’s interesting too ’cause it affects one of the other concerns you bring up, and we see this ethic on campuses to some degree, where they’re bringing in the word trauma and using it for many things when they hear different phrases, but that also brings in the problem of just subjectivity question, which is very different than the physical force, that if you have someone to be able to claim their level of harm and they’re the only one who actually knows it, and then you have a system that might incentivize them claiming harm, that doesn’t seem a very stable system to protect free expression.

18:30 Gary Chartier: Right, and it’s pretty much unpredictable from the standpoint of those engaging in expressive acts too, there’s no way they can sort of coordinate their actions with others, try to be respectful of others, except by just shutting up. And it seems to me that’s a pretty undesirable state of affairs. So, the more objectively predictable something is, the easier it’s going to be to frame rules around it and I think that concern of objective predictability does really provide a good reason for limiting what we think of as a kind of trauma.

19:02 Aaron Powell: We address that a bit in physical injuries too. I’m forgetting with the Eggshell…

19:06 Gary Chartier: The Eggshell Plaintiff, yeah.

19:07 Aaron Powell: Yeah and so, we just acknowledge, like, look, it’s unpredictable, you could do this thing that’s totally normal for anyone else and then it cracks the skull of the Eggshell guy. But we still hold you liable for that, even though you couldn’t have known, so why is that? So, should we get rid of that principle or, if not, why is that principle different from the subjectivity of trauma?

19:34 Gary Chartier: So, I think the Eggshell Plaintiff case is unavoidable. I think we’re got to have a rule of some kind in the Eggshell Plaintiff case, because we’re talking about injuries that are going to have to be remedied in one way or another. And I guess I’m not interested in tossing that rule out. When I think about the speech case, about the expressive case, I suppose my first thought would be that, while you’re quite right, somebody could indeed think about a trauma case and it might well turn out to be the case that I didn’t know that I was really going to trigger somebody and it turns out that I do that and there we are.

20:34 Gary Chartier: One issue might be the concern that if we think about this again, not in terms of just, that’s why I think the ecological metaphor matters, not just the expressive, the value to the person engaging in the expression of the expressive activity with the systemic value, the ecological value of the expression. What we don’t want to do, for the benefit then of the whole social ecosystem is to just start encouraging, incentivizing willy nilly deep self-​restraint on the part of anyone inclined to say something. So I’d be a little concerned in those cases about a rule that opened that door too widely. I think in a particular case, if I could really show actual physical trauma, organic trauma, I think, again, sometimes that’s going to be the case, I would be hard-​pressed to make a case about that individual instance being somehow completely insulated, but what I am inclined to think is that when we think about this from the perspective of the whole communicative ecosystem, it starts to seem as if we might have reason to want to not race there.

21:55 Aaron Powell: I guess what’s wrong, though, with a world where all of us are very restrained in our speech, where all of us are just really conscious of how what we say might hurt others and so try to be very nice and pleasant. We might lose out on…

22:07 Trevor Burrus: Richard Pryor.

22:08 Aaron Powell: Richard Pryor. We can think of some things we’d lose out on. But in general, wouldn’t that just be a much more civil world?

22:16 Gary Chartier: Well, but the problem for us, at least a problem, it seems to me there, is that so many different things bother so many different people. It’s not as if there’s a kind of a uniform set of minimal expectations that would, if acknowledged, solve the problem you’re talking about. Instead, there’s a whole range of diverse responses that people have to different things, and it does seem to me that yeah, if we spent our time trying to anticipate all of those possible responses and restraining ourselves accordingly, then speakers of all kinds would be disadvantaged but, more importantly, listeners of all kinds would be disadvantaged. If I had to try to guess in advance what might be a serious problem and I therefore say what’s as inoffensive as possible, the end result is that those who might otherwise benefit from what I have to say won’t. Just think about the most obvious example here that ought to really concern us, I think, a whole range of political discussions that we might have. I really want to stress that I don’t think freedom of expression is valuable exclusively or primarily for political purposes, but we often think in the First Amendment context of the political context as especially crucial. Pretty clearly, so many things people say even in kind, gentle tones about opposing political ideas and figures will be deeply offensive to others and deeply unsettling.

23:47 Aaron Powell: Anarchism troubles a lot of people, no matter how nicely it’s stated.

[chuckle]

23:53 Gary Chartier: I’ve noticed that.

23:55 Trevor Burrus: I wrote a brief for the Supreme Court a few years ago in a case about a Confederate license plate and whether or not the state of Texas could prohibit Confederate license plates, and that brief defended offensive speech on the sort of instrumental ground which you get into later in the book. But one of the defenses was that, if things that used to be offensive, there are things that we should be talking about, for example, female sexuality in 1940, when it just offended many people to even talk about female sexuality, and so you need people like comedians, and people like Kinsey to offend people to begin with, so you can actually have a productive conversation eventually about things that we should be able to talk about. And that usually begins with offense, and there’s a line you have that I really liked, which was “the state of being offended or insulted is pointless.” [laughter]

24:49 Gary Chartier: Yeah, I think that’s right. I think that there are all kinds of things that our words might do that ought to be troubling. If I say, “I can’t stand what you said on the show today, and I’m headed over to your house tonight to beat the stuffing out of you,” you have every reason to be concerned about that. Maybe that’s a reason for you to hire security guards, or call the police, or just wait up with a shotgun. But the problem with what I said is that I posed a threat to you. It’s not that I said something that might have seemed offensive.

25:24 Aaron Powell: Is a offense, though, just a form of a broader moral sense? We don’t want to jettison the feeling of offense or tell people that it’s wrong to ever feel offense, because offense can give us meaningful information about the acceptability of what’s been said, whether then we in the future should say things like that. So, are you counseling against getting offended because it’s pointless, or are you simply saying this is more of like a wallowing in it is the problem?

25:55 Gary Chartier: I think there are all kinds of things that ought to, again, that ought to trouble us. If you announce… You’re Donald Trump and you announce that you’re going to execute a drone strike that’s going to kill a bunch of people at a wedding. I certainly ought to be deeply, deeply saddened and angered by that and want to push back at it, but I don’t think that it helps on top of those responses to the behavior that you’re signaling there to get offended. So, I am actually in the book, for good or ill, maybe I’m just running it up the flagpole to see who salutes, but I am indeed in the book advocating just letting go of offense as a separate kind of response among the repertoire of moral emotions that we might bring to bear. I really find it unhelpful.

26:50 Trevor Burrus: Now, many people, especially the increasing illiberal left, who is against free speech, argue that hate speech and letting Charles Murray speak on campus and things like this, what they actually do is they foster a world that keeps them, keeps people of color in a subjugated state, that allows people that have ideas that ultimately hurts the people on the bottom of the totem pole, in particular… If that’s true, okay, I guess we could debate whether or not that’s true, but if that is true, that seems like an injury. If we’re talking about how does expression injure people, maybe the entirety of expression of the KKK in the 1880s or the 1920s helped create a system that injured African Americans at that time and that’s why it should have been restricted.

27:47 Gary Chartier: Certainly, somebody could take that view, and I don’t want to just trivialize it in responding, but I think that the injuries that are done by the KKK are injuries that might be reflected in or encouraged by the speech that Klansmen might make, but those injuries are in fact the injuries that happen when people are beaten up or lynched. They are injuries that happen when businesses that might want to, say, accept you as a customer don’t because the KKK is lurking around the corner to threaten. So, on my view, while it is certainly the case that speech can contribute in various ways to unhealthy and deeply destructive patterns of social behavior, when we’re talking about what the law ought to do, it seems to me the law ought to be concerned with the bad behavior that the speech encourages. On my view it’s really crucial to recognize that there’s always a gap between speech or expressive activity more generally and action that is promoted by the speech. That the actor who engages in injurious conduct of one kind or another always has a choice about what to do there, and ultimately has to be responsible for that. So, can speech encourage an undesirable social climate? Absolutely. When we think about the bad behavior that we want the law to be involved with, it seems to me, is the bad behavior that happens when those in that social climate make particular choices.

29:34 Trevor Burrus: I think we also have to be concerned… And one of the reasons I like your book a lot is, as you say, with the ecology of free expression where, sure, this might be true to some extent, but there’s other considerations too. And you do that in chapter four. One thing that I always bring up when I talk to students, in particular, about free speech is remember that there will be government officials enforcing these rules. And sometimes I say that my baseline rule for free speech is today you, tomorrow me. So, if today I restrict your expression, tomorrow the next government official will restrict my expression. And so, talk a little bit about public choice and class, and how that factors in.

30:14 Gary Chartier: Yeah. So, I think one of the biggest mistakes that I think people who want the government to do things about various ills that they are concerned about, one of the biggest mistakes, it seems to me, that such people make is in treating whatever rules they promote as practically self-​enforcing. So, the rule will be interpreted in the most rational, most appropriate way possible. It will be enforced without friction, and so forth. And we know that that’s just false. In point of fact, rules will be enforced by institutional actors whose personal incentives don’t go away just because they come to occupy institutional roles. Maybe they acquire some additional incentives in those roles, but they’ve still got ideological biases, they’ve still got a desire to benefit themselves and their cronies. They also will have the extra desire, now that they are in institutional roles, often, to beef up the institutions and enable them to continue to thrive in various ways.

31:24 Gary Chartier: And so, when we ask that the government in one way or another get involved in restricting what we take to be injurious speech, or injurious expressive activity, it’s just deeply, I think, naive to imagine that the government actors who do this won’t be pursuing their own objectives, in one way or another. And so, if, again, while I don’t believe we should ever treat political speech as the paradigm case, the only case that matters, it does matter a lot that speech is available, that expressive activity is available to hold political actors accountable. And the more you give political actors the freedom to interfere in expressive activity, to interfere with expressive activity, the more you create for them opportunities to interfere precisely with that activity which would hold them accountable.

32:20 Aaron Powell: Does prohibiting political actors or agents of the state from getting involved in speech, from punishing those who say things that we don’t like, or whatever else… So, on the one hand, yes, that means that they can’t over-​respond or punish the wrong things. But does it also potentially create, by not having that speech be punished, legally, does it create almost a vigilante problem, where the non-​state actors over-​react to the offensive speech, so to speak? Something you have like our epidemic of Twitter-​shaming, and the way that people’s lives can be outright destroyed by the piling on when they make an off-​color joke, or…

33:14 Trevor Burrus: Has Justine landed.

33:16 Aaron Powell: Has Justine landed yet. That sort of thing. And that, maybe, if we simply said, “It’s not okay. This kind of speech is… This sort of offensive speech is legally barred and you’re going to get punished,” then there might be instances of people getting punished who didn’t deserve it, there might be instances of people checking their speech more than they needed to, but the legal penalties that they might suffer could be substantially lighter than the mob justice that comes down now.

33:51 Gary Chartier: I wish I had a glib response to that. I don’t. I share your deep discomfort with that kind of mob justice and the tendency of folks to pile on. And I’m not sure I see, ultimately, a response to that that doesn’t involve a deep-​seated cultural shift in what people regard as appropriate. And so, you might think the availability of legal penalties could, in one way or another, help to effect that kind of cultural shift. I suppose, one might imagine, alternatively, that the legal penalties would just reinforce people’s thought that their piling on was entirely appropriate, and that, “See, the law is intervening here and putting this nasty person in his or her place, and weren’t we right to make an issue of it.” I despise that kind of reaction. I still tend to think that physical force against bodies and stuff is in a separate and especially troubling category, and I’d really like to minimize that, even if over the short term, the furies come out in other contexts. But I certainly don’t have anything dogmatic to say about that.

35:27 Trevor Burrus: Well, I think it’s important to realize, when it comes to the social media world, always, and I’m telling people this all the time, that in the history of the… The future history of social media, we are in infancy right now. So, we’re actually creating social norms in the technological world, right now, and it’s all very new. And I think that the Justine story, for example, has resonated with more and more people, that that was particularly horrible. And so, we learn, maybe, that will… In 20 years, it will be just considered very gauche to do that kind of stuff to people, hopefully. Let’s hope. Now, you also discuss freedom of expression as having instrumental value, which has… You have many, many bullet points of what sort of things they are. We always talk about the marketplace of ideas, but you expand beyond that. What sort of instrumental value does freedom of expression have?

36:20 Gary Chartier: Yeah, so that’s really in, I think, modern free speech doctrine, and if you think about the work of people like Milton and Mill who helped to kind of lay the groundwork for that, is the instrumental approach that’s really gotten probably the most attention. So I’ve tried to talk about other factors before getting to that, because I think it’s been discussed so much. So I talk about the importance of property rights, about the way that you express an activity is an expression of autonomy and should be respected for that reason, and so forth. But I do end up focusing quite a bit on the instrumental value of expressive activity, which I think fits really nicely with the ecological metaphor, because it really has to do with benefits that are often dispersed very widely throughout society. And so sometimes they’re individual, but sometimes they really are very widespread.

37:13 Gary Chartier: So we start out, it seems to me… The classic example is talking about knowledge and truth, and the way in which the debate that can happen as different positions are expressed and then confronted by alternatives, can really help for the rest of us, analysts and participants sometimes, to figure out more clearly what it makes sense to think. But I also suggest, yeah, there are some other instrumental consequences that we ought to be very happy about. Those include, I think, just giving people new opportunities to learn how to make good choices, to engage in practical reasoning. They include holding not only politicians, but other kind of actors out in the public space, both governmental or private, holding them accountable. And then finally, a particular favorite of mine, I guess, I talk about the way in which we ought to see… This is Mill’s phrase, but experiments in living can be seen as instances of expressive activity, that it’s not just that I go and I try a new way of being, whether it’s living in a commune or whether it’s engaging in polyamory; all the different things that people experiment with in one way or another.

38:37 Gary Chartier: Those are things that are interesting and sources of learning for the participants. But I think we can also see these as expressive and as conveying ideas to the wider public and helping people to make sense of what they think of these things. So I talk, for instance, about an interracial community in mid-​20th century Georgia, and the way in which surrounding observers, in a highly segregated society, could be deeply unsettled, not by the thought that, for instance, those involved in this community were pressuring them to change the law or demanding integration now, but just by showing that, in the context of this environment, people from different ethnic and cultural backgrounds could get along just fine, and in so doing, call into question the perceived necessity of existing segregation. And so I think, yeah, experiments in living should be seen as expressive and as yielding instrumental benefits, too. So I think there’s a whole range of ways in which expressive activity yields these instrumental benefits.

39:54 Aaron Powell: That seems like an awfully broad definition of expression. Along those lines, then, is there any behavior that human beings could engage in that does not count as expressive?

40:11 Gary Chartier: I think in most of the cases I have in mind, the expression is intentional. So if we were talking about conveying information, and people understand themselves to be conveying information, let’s say, for instance, to hold a politician or a CEO accountable, that’s pretty deliberately and self-​consciously expressive. I just want to note that there are other kinds of contexts in which we definitely can see behavior as conveying expressive content. I think you’re quite right that it’s not always going to be intentional and that the most natural label to apply isn’t going to be expressive. So the people, let’s say, in the commune don’t think of themselves as first and foremost living their communal life as a matter of expression.

41:04 Gary Chartier: I still think, though, as a third-​party observer, when I think about how society-​wide learning takes place, it certainly does take place through the observation of what people are doing there, and we can see the activity, therefore, as secondarily expressive. Obviously, I don’t think that a case for freedom of expression ought to rest primarily on those kinds of cases where expression isn’t the primary purpose and isn’t the natural way to characterize what’s going on. I just wanted to note that I think there are benefits of a kind that we can recognize as associated with expression that come along with those kinds of experiments of living, for instance.

41:43 Trevor Burrus: Now, you bring up some instances at the end, case studies that you think some are problematic for free expression. One of them is intellectual property and you have quotes around property, so I guess we see where you’re coming from in that debate.

42:00 Gary Chartier: Yeah, I think I side here with those libertarians who tend to think that intellectual property rules, in fact, are counter to rights in physical property, and also tend to inhibit the exchange of information. Obviously, there are going to be counters to that, that will emphasize the way in which intellectual property rules might in one way or another encourage the expression of information. And that’s a long and detailed argument that I try to engage in in a little more detail elsewhere, and other people, of course, even more, but I do at least attempt to cite studies that provide reason to believe that those intellectual properties don’t yield the informational benefits that they’re often taken to, and it’s clear on the other hand that they can be used to restrict access to information and restrict the flow of information in a way that I think we might well find troubling.

43:00 Trevor Burrus: You’ve given a private action here, and just sort of talk about it in a virtue ethics sense, so I got to ask you about Colin Kaepernick and the kneeling, and all those things, how should we view those in the context of your theory of free expression?

43:16 Gary Chartier: Yeah, so that was very much, of course, in the news while I was finishing the book, and my view certainly is that Trump only made matters worse, as he usually does, by getting involved and trying to urge that the owners in one way or another stop the players from their behavior that he saw as disrespectful to the flag, to the troops, to him, whoever, and I think that if you’re an owner, if you’re operating a football team, you certainly need to be aware, at least to some degree, of the extent to which the behavior of players on the field may impact ad revenue or ticket sales. And I don’t want to be insensitive to the pressures that those kinds of things may place on owners, but I think that it’s also really important that, both that the President of the United States, I think, not get involved in talking about what private actors ought to do in this context, and that owners at least take a second before assuming that they’re really going to take an irremediable hit here, to really allow players the opportunity to express themselves.

44:44 Gary Chartier: I respect the courage of the players who do want to call attention to police violence and other kinds of abuses, if they can do that in a way that’s not disruptive and doesn’t bankrupt the teams. I certainly think it matters for the teams to respect the contribution that those players are making to public understanding and debate.

45:13 Aaron Powell: Our current culture of free speech is fairly troubling, both on the left and the right, seem to be increasingly upset about people expressing themselves freely, and increasingly claiming offense at everything, often in a highly inconsistent and unprincipled fashion. Do you see any glimmers of hope? Do you think that this is going to get worse before it gets better? Is it going to get better? Or is it just going to get worse before it gets worse?

45:46 Gary Chartier: My ability to predict the future is really limited. Right now, however, I don’t feel very optimistic, frankly. I feel as if, on the one hand, as you say, say for instance, campus folks, on the statist left, who seem to be quite unhappy with speech that they regard as inappropriate, certainly don’t immediately show signs of backing down. I know there have been arguments about how widespread campus suppression of speech really is, they’ve been back and forth, the discussions of the numbers there, but at any rate, certainly the examples we see are troubling. But then, it’s very clear that the same folks on the right who dismiss their counterparts on the left as snowflakes are themselves really unhappy when, say, someone posts an image of a decapitated Trump or something like that.

46:49 Gary Chartier: They’re very willing to jump on the bandwagon of calls for stigmatization of those who express what they regard as views that are outside the pale. I do think it’s an across the board phenomenon. I think you’re absolutely right, Aaron, and it bothers me. If there’s any glimmer of hope, it’s just that maybe technology provides ways for people to communicate that are relatively difficult to suppress and that are relatively anonymous. And unfortunately, that’s going to mean often people engaging in anonymous conduct that’s itself pretty nasty. I don’t know, if there’s a tiny glimmer of hope, technology might provide it, but I think the culture as a whole is anything but hospitable to free expression at this point.

47:42 Aaron Powell: Free Thoughts is produced by Tess Terrible. If you enjoyed today’s show, please rate and review us on iTunes, and if you’d like to learn more about Libertarianism, find us on the web at www​.lib​er​tar​i​an​ism​.org.