The Value of Free Speech

Fall 2018

Our usual debate over the extent of free speech takes for granted the value of free speech. We argue over the boundaries or limits of what can be said but pass over the importance of what is said within those bounds. This leaves us with a peculiar sense of why speech matters: We imply that it's valuable because its restraint would undermine our freedom, which is a way of avoiding the question more than of answering it.

This disinterest in the value of free speech, sometimes amounting to a refusal to define it, appears to be rooted in the principles of our liberalism, which enshrines free speech as one right, perhaps the principal right, among the rights that deserve protection in a liberal society. To guard such a right, it seems, one must not specify the value of how it will normally be used lest by such definition society destroy what it wants to protect. For by discussing the value of free speech one would expose less-valued or valueless speech to disdain, or worse, prohibition.

A society that understands itself in terms of rights must above all protect its boundaries in the definition of rights rather than concern itself too much, or at all, with what is within the protected territory. Thus, the protection of unlimited, or nearly unlimited, speech eclipses our view of worthy speech. To recover some idea of worthy speech, and therefore also of why free speech matters, we will need to challenge our liberalism for its own good, and to expose its more-than-simply-liberal aims and character. And to see these is ultimately also to grasp what speech is for, and why it is important.

FROM NORMAL SPEECH TO FREE EXPRESSION

Everybody admits the exception to unlimited speech in the dangerous but exemplary circumstance of shouting "fire!" in a crowded theater, but no one wants to pursue the distinction implied in that exception. Yet to condemn or punish the act of falsely shouting "fire!" in that situation is indeed to distinguish between helpful and harmful speech. At times we will find value in apparently harmful speech, as in the "redeeming social value" awarded by the United States Supreme Court to speech that might appear obscene and thus dangerous to our morals. From this example one could infer that there is no such thing as a "content-free" attitude toward free speech. Our need to define permissible speech tempts or compels us to find value in any speech that is permitted. We pass from permitting speech because it is valuable to valuing speech because we permit it. However much our liberalism demands that we withhold judgment upon what is said, by the same token it impels us to find value in what we permit. Hence, one may ask, not from without but from within liberalism, what is this value — the value of normal, non-obscene speech?

The right of free speech makes presuppositions. To prize it is to hold that free speech has some value, which in turn requires that speech have value. Speech consists in giving reasons. It is not just the communication that other animals can engage in, often very effectively, without supplying reasons; only humans give reasons. Speaking is an appeal to fellow human beings who share the power of reason; so, speech presupposes that man is a rational animal. The power of reason is to appeal to others persuasively at some level of generality to gain the assent of someone besides yourself. It is more than a cry of pain or a grunt of pleasure, and it must issue in a complaint or a statement of gratitude that lifts the communication above your private feeling. It is the "rational" that rises above the "animal." Speech is a claim upon the attention of another, a prayer or a demand to be heard; it is an argument, if nothing else, against indifference.

So far, one might nod in agreement. But this seems too simple. Is it so clear that speech lifts one above personal motives? Perhaps speech is not reason but rationalization, the reasons giving effect to one's motives by concealing them rather than transcending them. And what of the joke: "Shut up," he explained. Do not many arguments end in the attempt to silence the other side's reasons? Isn't this maneuver characteristic of political speech above all?

One might allege, therefore, that the point of arguing is to win, not merely to appeal to reason, and that the power of reason is to serve as a cloak for the desire to win. But to say this admits that reason has a certain power and the desire to win a certain limit. Reason makes domination respectable while it requires the winner to make himself acceptable. Language too is not merely arbitrary; it has a structure, a grammar enabling it to make sense. Even a lie must make sense. The "shut up" joke makes sense by pointing to the fact that it is sometimes courageous and not always wise to speak.

Reason makes its way often with only apparent rationality, but the appearance of reason indicates the presence of reason. Even silencing requires an argument, as in George Orwell's rationalization from Napoleon the pig that "all animals are equal but some animals are more equal than others." The power of reason, one may conclude, is shown in its very abuse. But this is an objection to which one must return. Somehow the power of reason must be shown to be compatible with, rather than merely subordinated to, the power of rulers. Somehow one must understand reason as not merely poetry and rhetoric, or, in today's ugly word, "ideology" — in sum, not merely partisan.

Preoccupation with the limits rather than the content of free speech can be seen in John Stuart Mill's iconic pamphlet On Liberty. Mill wishes to expand the limits of free speech as against the "tyranny of the majority" that menaces his country in his time, and to do this he magnifies the benefits of free speech and minimizes the harms. The benefits culminate in more "originality" and "genius"; the harms are no worse than the need for intellectuals like himself sometimes to "keep...their convictions within their own breasts." But discussion of the consequences of free speech detracts from Mill's principle that all concern for them constitutes "interference" with individual freedom. Within the permissible limits of free speech, all speech is substantially equal, for "permissible" means deserving of an audience.

Mill divides speech into true and false, not good and bad, for true speech brings progress "[a]s mankind improve[s]," and false speech merely tests and corrects true speech. All speech is good, though it is not said to address other rational animals and does not have to be argumentative. The benefits of speech do exist, though Mill seems naively to exaggerate the power of reason in discussion. Yet in his view the right to free speech holds sway over its benefits, and the benefits do not arise from the nature of speech as giving reasons. Mill's society heads toward progress but has no sense of direction other than a vague goal of replacing "despotism" and "barbarism" with "civilization." Instead, Mill's undescribed civilization has itself been replaced in our time by value relativism that makes it a point of pride to renounce its ability to distinguish "civilization" from the "culture" of any society whatever.

The Supreme Court has charged ahead of Mill to extend speech to "expression." This is a step beyond the First Amendment, which speaks of free speech, to the assertion that it meant to say free expression or perhaps to express that word without saying it. The change has developed in a number of cases over the years, but it seems to have been introduced in the famous flag-salute case in 1943, West Virginia State Board of Education v. Barnette, when the Court decided that it was permissible for Jehovah's Witnesses not to salute the flag in schoolrooms. Their refusal to salute was taken as a symbolic exercise of free speech because the command to salute was declared to be an impermissible compulsion to speak. So refusing to speak was concluded to be speech and protected as such.

In oft-quoted words, Justice Robert Jackson said that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics..." and force citizens to do so "by word or act." Here "act" is added to "word," apparently as not the same, but the act is then taken as a kind of word. "Symbolic speech" and "expressive conduct" emerge in later cases dealing with flag burning, draft-card burning, wearing of armbands, and nude dancing. In 1941 Franklin Roosevelt had listed "freedom of speech and expression" among the Four Freedoms America would defend, and since the Court developed its meaning, "expression" has come to be accepted as an equivalent of speech or indeed as the generic term of which "speech" is one variety. Law-school courses in constitutional law now routinely use the title of "freedom of expression" for the subject of free speech.

Two questionable consequences can be seen to emerge from Justice Jackson's Barnette opinion. First, he denied that there is any constitutional fixed star of political orthodoxy in the very act of declaring the political orthodoxy of free speech. The "very purpose of a Bill of Rights," he said, "was to withdraw certain subjects from the vicissitudes of political controversy." Are not those subjects declared to be beyond controversy thereby made orthodox? The implication is that free speech must be regarded as sacred and hence has no value that can or needs to be disputed. This is a proposition I am disputing here.

Second, Justice Jackson said that free speech cannot be compelled because the Bill of Rights "guards the individual's right to speak his own mind." But to speak one's own mind is to address other minds, not merely to squeak or bark or chirp. The flag salute and the other, later examples of "expressive conduct" that the Court found to be akin to free speech are symbols or gestures to which one can impute a meaning, but they are not rational arguments. When speech is taken as expression, and "expression" becomes the general category of which speech is one type, then the rational in speech is subordinated to the irrationality of symbolic expression. Yet a symbol is only a symbol by virtue of its imputed rational meaning in words. The irrational is rightly subordinate to the rational from which alone it gains its sense. Both of these consequences imply that free speech is fundamentally irrational: the first implying that free speech cannot be rationally disputed as good or bad by partisans in politics; and the second that a symbol is not inferior to an argument but rather an argument is a kind of symbol.

A refusal to consider the content of speech so as to recognize its value leads to a minimal definition of free speech, one which allows for including as much as one would not wish to prohibit. One would not wish to do away with theater and poetry just because they add symbol, style, and gesture to reasonable speech. But though the beauties of speech add to its power, they distract from its thought, or at least conceal it. And since a thought is almost always disputable, so a less-strict definition of speech is more exact; one can be more sure of the boundary between speech and act. So the Supreme Court has found that although flag burning is acceptable as legal speech, draft-card burning can be prohibited as an illegal act. That is how it happens that our speech over free speech tends to concentrate on the extremes of riot, rebellion, eccentricity, and obscenity where reason seems to be at its weakest.

We liberals are occupied with challenges to normal speech rather than with the normal speech we reject. We so far forget that "expression" is a dilution of speech that it comes to be held the essence of it. Shouting and screaming take precedence over persuasion or threaten to become the normal means of persuasion. The more intense the expression, the freer it ought to be; the test of free speech is to show how far it can tolerate departures from normal speech. In the latest instance, a baker's message on the icing of a cake is taken as protected speech (in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission). If I mush someone's face in it, do I send a message or commit an assault? That is the kind of discussion we are now left to have over free speech.

ENEMIES OF SPEECH

In presuming the capability of human reason, free speech has two present-day enemies seeking to pervert it or make it irrelevant. One we have already seen: the notion that speech is dictated by the urge to express oneself. The other is that speech is directed by self-interest. All speech comes from the self, but as speech, it rises above the self when one has to give a reason. The reason may be urged with an implicit demand for attention to one's self — listen to me! — but the reason is a call to justice, not merely in the service of one's own advantage.

Socrates in Plato's Apology of Socrates defends himself to be sure, but also "someone like himself," or a person in his position. The notion of self-expression, however, denies the power of reason and the existence of justice to say that all reason is rationalization, all generalization a fraud, a mask for the irrational id or urge, which is truly in charge. This view is the theme (the argument!) of Friedrich Nietzsche, very powerful today though often not advanced under his name. It suggests that the purpose of argument is to win and the result is not to learn, as when one's argument is refuted, but to triumph in a contest when no telling refutation can be readily produced. The ancient Sophists, without the help of Nietzsche, practiced their belief that rhetoric is clever maneuvering to get the best of your opponent. They were opposed by Socrates as enemies who did not understand the value of free speech and therefore felt free to abuse it.

Self-interest, the other enemy of free speech, also has an argument. Its proponents say that one's speech follows from one's interest, reflects it, and cannot change it. You can change your mind but not your interest; your mind is the prisoner and slave of your interest. While self-expression is heated and demanding, self-interest is cool and calculating. It has two forms: one very old and plain, the other modern (dating from the 18th century) and philosophically sophisticated.

Personal denunciation, or "character assassination," is the first form. One's opponent is said to have a bad character, a perverse sense of his self-interest that determines what he says. Hence his words are spoken in bad faith and his argument, whatever it is, can safely be ignored while focusing attention on his personal failings. The reason that this bad character deploys is the captive of his character and does not have the power to rise above it. Such a person can be defeated by reasoning that is ad hoc and ad hominem. Do not listen to him! It's better to insinuate and insult than argue with him, which would give his argument more dignity than it deserves.

This tactic, found in both mild and strong forms, is endemic to politics; it is sometimes true and always tempting, particularly in a democracy where the multitude enjoys the spectacle of bringing down the elite — the high, the mighty, and the presumptuous. The office of the demagogue has been denounced from Plato to the Federalist Papers, by friends and by opponents of popular government. Today the term is used frequently and demagogically by politicians, and never by political scientists, who refuse it the certificate of scientific credibility.

The political scientists (and their confrères in social science) have a second method of refusing to listen to speech. Their science says that speech cannot cause action; it can only be caused by action. It assumes that humans speak and act according to their interests, open or concealed. Humans speak in opinions, but they act according to their interests, which they give as opinions as if freely chosen but actually hold in consequence of their interests. These subjective opinions can be studied by social science in such magical fashion that they become objective "data" — i.e., facts obtained and certified by science. Social-science surveys are baptized as "survey data" and then explained by the interest of the group that holds them.

The explanation is a study of cause and effect with a view to making predictions, which are either in the past (as "analysis") or in the future (truly as predictions). This procedure assumes that human beings cannot choose for themselves or guide themselves, meaning not as they describe themselves. They may say "I did it," but in scientific fact they were caused to do what they boastfully claim to have done. Thus, humans are essentially slaves to the causes that science imputes to them. "You vote by your interest" would often be taken by a voter as an insult (and rightly so), but science is not troubled by such subjective reactions. It says that speech cannot be a cause of human behavior — which means that free speech has no value. Free speech in whole and every part is nothing but a boast.

FREE SPEECH WELL SAID

At this point, it is worth recalling where we started: Present-day discussion of free speech is understandably but deplorably dominated by the question of what speech should be permitted, what forbidden. By this standard everything not forbidden is permitted and — here is the rub — considered equal because equally permitted. But all free speech does not have equal value; speech that attacks free speech has less value than speech that explains it, endorses it, and practices it. Free speech needs to define itself in order to address its enemies.

Speech that explains and uses free speech has greater value and should have precedence over speech that denies the value of speech. This does not mean that free speech should be denied to its enemies (which are self-expression and self-interest). That would be censorship, and censorship has the simple but fatal flaw of being impractical in a free society. Alexis de Tocqueville supplies a beautiful demonstration of the point. But more than impracticability, the citizens of a free society have an interest (rooted in their faith in the reason of free speech) in listening to the enemies of free speech. Those enemies may not be entirely wrong, and they certainly provide food for thought. They point to the assumptions on which free speech rests and the weaknesses that exist in supposing so confidently that free speech is really speech and really free. These weaknesses must be addressed by free citizens. The direction of my argument can be discerned by this switch of addressee from humans to citizens.

Now to take a further step: What is free speech supposed to say? The question will seem strange, even inappropriate, to one who views free speech as a right. A right to free speech presupposes that what one says, or how one exercises the right, is left undefined. The government protects the right; the citizens in society say what they please. Yet clearly some free speech is more appropriate than the rest. Some free speech contributes to free speech by helping to define freedom and free speech in general and for that society. In so doing such speech defends and promotes the right of free speech. This would be the main task of free speech: to use reason to show why free speech is valuable and to make it active and lively. The task would include the investigation of the presuppositions of free speech in political philosophy, to see whether reason can guide our lives and how.

In saying this I do not mean to abridge or deny the right of free speech but only to specify what is valuable as opposed to what is tolerated. Tolerated but not valuable is the free speech understood as self-expression or self-interest, as stated above. You should have the right to speak (almost) as you please, and that right should be protected by law. But it is important to understand and to sustain the value of the free speech that contributes to free speech rather than that which abuses the right by denying or belittling the value of free speech. Not everything said is said well, and the right of free speech needs to be exercised well.

What is it in free speech that is said well? Let the definition be positive so that we do not proceed by excluding or proscribing any speech but rather by asking what good free speech supports. We have seen that free speech presupposes the freedom of human beings. Freedom means being in charge of yourself as opposed to being a slave. More specifically, freedom is the power of the self to cause its own action and reflection as opposed to the slavery of being under the power of necessity, when one is only being caused. Self-caused is both individual and social, and it amounts to the power to choose. The individual can choose by himself or with others. In choosing, one governs oneself as a whole individual or as one among a political whole that includes other free individuals. This choosing together is self-government or political liberty.

Political liberty might not seem to be the greatest good, greater than other uses of free speech, such as freedom of thought and freedom of artistic expression, that protect individual excellence. Yet human beings are not fully self-sufficient as individuals, however much they sometimes wish to be. Men are social because they must live together, depending on one another to supply their needs, above all those bodily needs that ambitious thinkers like philosophers and poets cannot be troubled to satisfy on their own. And more than merely social, men are political because they do not have the necessary instincts to cooperate but are compelled to invent the conventions by which they live and to use the rationality they have in their nature instead of their instincts.

These conventions are based on principles by which they rule in societies. Conventions are disputable, and humans argue in politics over what they should be and who should make them. Such argument is the content of free speech, and it makes use of the rationality that is the most distinctive feature of a human. At the same time that it is distinctive, this sort of argument addresses the needs of the body, needs that humans share with other animals. Politics thus features the rule of reason over unreason, the rule of what is distinctive about humans over the necessities of animals, including the mortality common to all living things. Man in the whole is the topic of politics as much as it is the arena of philosophy and poetry. Philosophers and poets might wish to learn from politics in order to better instruct politics, as they frequently like to do.

Liberalism, as shown above, wants to distinguish politics from what it calls "civil society" in order to prevent the full operation of political liberty. It distinguishes public from private to the advantage of the latter, reducing politics to providing the means of securing the private sphere, to the pursuit of (private) happiness. It has, therefore, a strong resistance to the idea of "rule," an animus displayed in attempts made to subvert or overthrow the sovereignty of political liberty.

One such attempt is at the heart of the discipline of "economics," a science distinct from politics that seeks to establish economic laws that are independent of political rule. Another is the "right of consent" to government, made central to all other rights, which depend on government, in such manner as to provide a lesser substitute for the comprehensiveness of "rule." The people do not rule but consent to the rule of those whom they elect, who also do not rule because they are creatures of the sovereign people. Consent is passive, as consent to be ruled; government is active but restrained from ruling. Political liberty in these constructions of liberalism is reduced to one liberty among others, such as economic liberty, or to the central but subordinate liberty of the liberty to consent.

Fortunately, there are wiser liberals, above all the two greatest authorities on American politics: the authors of the Federalist Papers and Tocqueville in his Democracy in America, who by observation and interpretation show that liberal consent in America amounts to political liberty in its fuller meaning. They show that the "Blessings of Liberty" promised in the preamble of the Constitution center on the free self-government over free men that is the same as "the rule of the free." Political liberty becomes responsible for economic liberty, ruling it with encouragement and restriction as partisan elections decide, and democratic consent becomes active in private life as well as sovereign in public decisions.

Free thought can of course exist without political liberty, as we know from the great philosophical works written in times of tyranny and of threatening religious censorship. The same is true for great works of poetry, art, and music, which seem to have become scarcer as a grave but almost unnoticed consequence of more democracy. Liberty for the few can be available if exercised with care so that it does not reach the attention of the public authority. One might conclude that this liberty is the most that can be achieved, indeed that all human achievement is reserved for the few who accomplish their thoughts and deeds by themselves beyond the notice of the many and the powerful. Yet a free society in which the many are the powerful has achieved greatness and nobility in its deeds, and in a crucial situation under the watchful attention of the world.

This is America in the 20th century, which with its allies saved civilization from the barbarism of Nazism and communism. This great deed (or series of deeds) was done not out of self-expression or self-interest by mere commitment or calculation but out of nobility, a democratic nobility shared by all though led by a few.

NOBILITY AND FREE SPEECH

Nobility means rising above necessity, or above the seeming necessity of living as you wish and calculating for present advantage, by finding it necessary to face a daunting task, thus using necessity against itself. One must refuse to accept the slavery of seeming necessity and instead insist on the human capacity for choice. Free men preserve their freedom only through acts of nobility that elevate them above ordinary necessities that seem to provide excuses for indifference and inaction. These acts are not constantly necessary as if human life were one long war, but they are occasionally necessary, and they reveal the extent of human freedom over circumstances.

On this point one can again criticize the official liberalism of our time, which, guided by the great thinkers at its inception, sought to make freedom easy by connecting it to motives of necessity. John Locke, for example, began from the "perfect freedom" of men in the state of nature, and then tried to maintain this freedom by resorting to the right of self-preservation rather than to moral virtue to protect one's freedom. America, however, fought to preserve itself as America, a free country, not to keep its population alive as separate individuals (which might have justified indifference or even surrender). This it did as a choice, neither blindly nor automatically.

Freedom is life by choice, in some serious degree conscious and voluntary and for both the individual and society. Choice requires rising above an urge or a whim or a passion. And rising above slavery to one's human body requires moral virtue. The human body rules us by pain and pleasure, and one can become a slave to fear if one is without courage, and to pleasure if without moderation. A human cannot deny the fact of pain and pleasure, but one can learn through good upbringing to control the extremes of bodily passions in a reasonable mean.

Courage is a mean between rashness and timidity, moderation a mean between greed and insensitivity, as we recall from Aristotle's report of what we naturally know. Free speech — to return to the topic — has a stake in moral virtue as the cause of free persons. Morality demands a free person because an action is not moral unless it is chosen, and morality makes free action possible by lifting an individual or a society above slavish necessities. It's a virtuous circle of cause and effect. It implies a natural capacity for virtue that has to be actuated by virtue — a capacity for freedom that requires the exercise of freedom.

To repeat, I am not proposing to forbid immoral speech, assuming it has been identified as speech succumbing to human necessities. We humans need an occasional holiday from the seriousness of moral virtue, pleasant as it is to moral people. Aristotle puts the fun of wit on his list of virtues. Free speech can serve as a safety valve for letting off steam, a purging function often claimed for it that is featured by Niccolò Machiavelli. We also need other, subordinate liberties to political liberty — economic liberty to make us prosperous, artistic liberty to make our lives beautiful — but these are not as serious as political liberty.

With political liberty we speak to one another about our liberty; we argue over a course of action, a policy, and our ruling principles. Political liberty is the use of free speech to determine who and what principle should rule us.

FREE SPEECH AND FREE RULE

Societies stay together through rulers who rule by ruling principles, which are principles about the whole, about the common good. The debate over abortion today is about the kind of society we want. One could suppose that those who want abortion to be legal should have abortions, and those opposed should refrain from them, with the result that both sides are happy. But in fact, both sides would be unhappy. Those who favor legal abortion want a society in which a woman freely controls her own body, and those opposed want a society in which a woman does not have a right to kill a developing human being for the sake of her convenience. Politics is not about "preferences," as is often said by those using the analogy of consumer preferences. One can prefer vanilla to chocolate without wanting to abolish chocolate, but this is not the case in politics. Political liberty is distinctive because it consists in free speech over the choice of which principle, under which rulers, should rule the whole.

But what is the typical choice of free speech as to rule? One can approach this question through a consideration of the freest human being, the philosopher. The philosopher is freest because he questions and studies things that most people take for granted — on the ground that taking fundamental principles for granted is a form of slavery. Freedom in the strongest or the strictest sense is to break free of the principles that normal people do not question. To break free does not necessarily mean to abandon them and live as a hermit or madman or rogue. One can question the presuppositions behind free speech and find them reasonable (as in this attempt). But then one's embrace of or accommodation to the principle of freedom has been responsibly addressed and found more or less reasonable. This is the highest or best freedom, one might reluctantly agree, but is it the only freedom? There seems also to be freedom in a loose sense, attainable by many if not all of those who do not want or are not able to be a philosopher. This would be political liberty.

Then within political liberty is there a typical argument, one found in most every free society? Indeed there is, and it is an argument analogous to the distinction between strict philosophical liberty and loose political liberty. According to Aristotle, there are two parties in every regime, visible in a free regime. The party of the many, democracy, and the party of the few, oligarchy, can be found everywhere, and they engage in argument with each other, sometimes muted and implied, sometimes open. The many are more than the few in quantity. They are the larger part of all, that is, of all individuals in the whole. How is this possible? One needs a little metaphysics to see; one must carry the logic of politics into the whole universe to clarify the democratic argument. "All" can be a whole if all are equal parts, and they can be equal if seen as bodies that are parts of a whole body. Human beings are equal with reference to their bodies and their bodily necessities. When, however, one looks to their souls or minds, they are unequal, sometimes greatly unequal. Bodies are equal when considered for their matter, in which they are the same as all matter, as if human beings were nothing but matter like the rest of the universe. By the logic of the democratic argument, humans would have nothing special, nothing outstanding or distinctive, from the rest of nature.

Can the many make a whole, given this stringent extension of the argument on their behalf? Aristotle's answer is "No," and to make it he distinguishes demotic from democratic. Demotic individuals are simply equal, but as such they cannot form a government, having no distinctive capacities. Without a government there is no rule, no common good. A government needs officials and its society needs artisans, workers, experts; all of these are unequal. It seems that certain inequalities are needed to make a whole even of equal parts. Aristotle's distinction is like James Madison's in Federalist No. 10 between democracy (meaning pure democracy) and republic (representative democracy). A republic needs institutions that will (likely) select "fit characters," as Madison calls them, who are no longer simply among the many whom they are selected to serve. The "cracy" in democracy enables it to function at the cost of departure from strict equality.

Aristotle does not make this objection to demotic equality in his own name but puts it in the mouth of a spokesman for oligarchy. Oligarchy, government of the few, stands for "the better sort," or the best, altogether for excellence, and in sum for quality. The need for quality is a need for the few who have the most of it, whatever it may be. Even democratic qualities found quite generally, like courage, are distinctive of some democrats, not all of them as such. The whole of quantity fails because it is quite homogeneous; to succeed it needs those who are outstanding and needs to give them the rank they deserve as outstanding. Democracy speaks for mankind as one individual human to another; oligarchy speaks for humanity as a whole vis-à-vis the rest of the world or the universe.

Mankind is the part of the whole of nature that has an awareness of the whole; it can reflect on the whole (through theory) and can act on it (in practice). Thus, the oligarchical argument asserts the claim of humanity to be outstanding, for its awareness perhaps the best part of the whole. To assert something is more than merely to say it when nothing is at stake; it is to speak with passion and to demand to be honored and listened to in a situation where one's statements are contested. Assertiveness is the most outstanding, the freest quality of free speech. The Declaration of Independence begins from the "self-evident" truth Americans hold that all men are created equal. But this is not enough. At the end its signers go beyond what is self-evident; they mutually pledge "our Lives, our Fortunes and our sacred Honor" to affirm it. In so doing they stand out from the equality they assert on behalf of those they excel by the very act of pledging their distinctive honor.

The two parties are those of quantity and of quality. But all nature has both quantity and quality. Humans are quantity insofar as each counts for one, but quality insofar as human beings have the special honor of claiming superiority over the rest of nature. Humans are a democracy among themselves as a species, and an aristocracy with respect to the rest of nature. Then both parties are correct or true: Quality counts for more because it is more important, and quantity counts for more because many are more than one or few. There are two meanings of "count" in regard to humans. "I count" means I am special; "we count" means "we count up." Every quantity is a quantity of a certain quality, and when counting one adds up the quality or qualities that have been identified as "counting." Yet conversely quality also depends on quantity; the quality when identified becomes something countable, as every "one" is potentially more than one, namely, few or many. In a rational claim every personal "I" becomes "someone" like me, with my qualities and deserts.

THE HIGHEST USES OF FREE SPEECH

Tocqueville applies Aristotle's analysis to our democratic era, saying that every free society has two great parties, one that wishes to extend and another that wishes to restrict the power of the people. We may now apply the distinction to American parties today, the Democrats and the Republicans, who seem as liberals vs. conservatives to fit this general description. Indeed, ours is distinctly a politics of two parties, in a way that sheds light on Aristotle's point — though other free societies, with more parties, also tend to fall into broad coalitions of the left and the right in related and similar ways. These are not always perfectly the parties of quantity and quality, of course, but they are often roughly just that.

This may be particularly difficult to see given the current American president, elected by Republicans but not much of one himself, who has an adversarial relationship with virtue and particularly with its accompanying conventions. He does appeal to virtue by loudly emphasizing the application of vulgar versions of it that are attractive to his supporters, almost all of whom are more honest than he is. But even now, we can perceive that our two parties are locked in competition between a more quantitative ideal of inclusion and a more qualitative ideal of distinction.

Both parties are forgivably rather self-righteous about these ideals because, unlike the ordinary citizens who compose them, they are always arguing with each other and in doing so always compelled to make a point of themselves. They argue over the character of the whole, the whole of our country and also the whole of all things. Is it a homogeneous whole of equal or similar individuals, as the Democrats intend, or a heterogeneous whole of diverse parts of different rank and importance, as Republicans imply? The argument between these two wholes, we may now conclude, is free speech about the character of free human beings. Each is a partial truth, but each is tempted to make the partial truth a partisan whole. In doing so, each attempts to explain the other side and claim it for themselves: Democrats want virtue but in pursuit of equality; Republicans want popularity but from a virtuous people. Each reveals itself when trying to answer the other.

Democrats imply a whole that is inclusive of all, when each is understood as equal to everyone else; Republicans imply a whole with hierarchy and ranking of those who are better or best at the top. One can understand this political difference as a disagreement over our non-political thinking. When defining a thing it is necessary to speak of what it is when it is perfect or complete, in its best instance, and yet also to speak of the quality or qualities that cover all instances of that thing so as not to omit what must be included. Thus, a tree is defined by the complete tree and by all instances of objects that one would call a tree. The best instance is the standard that a tree should fit, and the class of tree holds together all its instances. Every definition needs to combine standard and class; it needs to have a standard to state a class. The difficulty is in defining a human being, where the best instance is far distant from the average or worst instances — so that a definition combining class and standard is very difficult to specify. The standard of the best human is too strict to include all humans, and the class of all humans is too loose to do justice to the best. Our two parties represent these two tendencies, and each tries to see the whole in terms of its partial or partisan view. They each call on us to exercise our freedom by choosing its way.

There is no freedom without choice, and no choice without choice-worthy choices, those that make sense and can be defended as reasonable. The politics of our free country is defined more by a dualism of our two parties than a pluralism of any number. There are many ways in which a people can be made more alike and more unlike, but Nietzsche is wrong to say that man has a thousand and one goals. Our politics is not indeterminate, chaotic, or arbitrary; it is connected to human nature, to the grand question raised by human nature, and to the choice we make in the exercise of our natural capacity for choice.

That capacity depends on the speech with which we form and state a choice. We can therefore conclude where we began: Our liberalism — and here I include conservatives with those now called "liberals" — should cease its feckless quest to overturn any rational basis for freedom and thereby deny any value to free speech beyond its being unfettered. What a surprise that in our very partisan differences, fickle and arbitrary as they often seem, we should turn out to be rational beings, worthy of a freedom to speak.