The United States federal government is famously based on the idea of three coequal branches that all govern each other. The congress represents the will of the populace, the executive executes the will of the populace, and the judiciary interprets the will of the populace. Each branch exercises some control over each of the other two. Regardless of the flaws that have made themselves apparent over the years, the theory is solid assuming good faith actors.
As I've stated before online, I'm a big proponent of Free Speech™ as an ideal. Not just for me or for ideas I like or agree with, but for all. As you can imagine, this has gotten me some flack online from time to time. There is some truly detestable speech that the state has no right to censor or curb. And it is my contention that it is in your best interest that it be so.
I see a lot of discourse online on what speech should and shouldn't be allowed. On platforms, in individual conversations, and by the government. Speech restriction has its place, but the legitimacy of the actor can vary wildly. And I think that we should think of the interplay between these societal structures as analogous.
Consequences and Accountability
Speech has consequences. Sometimes devastating consequences. And I fully believe that people should accept the consequences of their speech. Freedom of speech, not freedom from consequences, after all. But who is responsible for distributing that accountability is important.
Much the same way we have three coequal branches of government, there are three branches of accountability; social accountability between individuals, accountability by systems and non-governmental market forces, and accountability by the state. Each of these have an important role to play, but their interplay must be balanced, especially in respect to their power and reach.
Social Accountability
Our power as individuals to apply social pressure is tremendous. Humans are social animals and have evolved to co-exist with other humans. Expulsion from the tribe and social ostracization are powerful motivators because they have traditionally been real threats to our survival because of how much we rely on being a productive member of a healthy group.
Social accountability, especially in such a large and diverse society as ours, is highly distributed with high variance and low institutional backing. Because this is the accountability of the individual, it can take form in a wide variety of ways. Those with unhealthy ideas could find themselves ostracized, shamed, or even at the receiving end of violence.
Social accountability is akin to the conscience of the public. And we should have a strong conscience. But this can be the most uncomfortable accountability to provide. And yet we must. Holding people accountable requires confrontation, and confrontation is uncomfortable.
Systemic Accountability
Beyond the individual, there are institutional powers that can exert pressure based on behavior and speech. Institutions like banks, employers, and tech platforms don't have the backing of the government but still can exert extreme pressure on individuals with unsavory behavior. Banks are often hesitant to do business with sex workers, for example. There have been numerous examples of people losing their jobs over racist posts online, which is broadly legal.
Institutions exercise more substantial power than individuals. Often being driven by market forces, they're also less likely to take action unless the institution faces some kind of pressure. They are slower to move, but the consequences of systemic accountability are usually more severe than mere social ostracization. Being de-banked for the speech you choose to engage in could be debilitating when existing in a modern, cashless society.
Systems, of course, are not purely driven by market forces, but also the individuals that comprise them, the social fabric in which they exist, and their institutional inertia. Their outsized power over individuals requires careful regulation from the state on behalf of its constituents.
State Accountability
The state is said to have a monopoly on violence; that is, they're empowered to legitimately employ physical force against a person. This could take the form of arrest, compulsion to comply, and in extreme cases dictated by courts or by circumstance, capital punishment. These powers are codified and could be said to be analogous to the reasoned result of the public's prefrontal cortex; rules and regulations that we've thought through in great detail and with great care.
While individuals might make the decision to enact violence, they must do so accepting the consequences of those actions. It takes sacrifice. The state does not have that limitation. The state can implement violence with little direct accountability because it ostensibly acts as an extension and expression of the will of the people that it governs.
The state is the end of the road and is the ultimate power in accountability. Its control is effectively limitless unless specifically curbed. Fortunately, we have been wise enough to limit the power of our government via our Constitution. But worryingly, people are sometimes quick to appeal to the authority of the state to provide accountability when another branch would be more appropriate.
Interplay Between the Branches
Each branch keeps the other in check, interacting in unique ways. For example, the state is answerable to the people through democratic actions or protest and public pressure. Systemic actors lobby to shape law. And the state regulates platforms, institutions, and the citizenry on behalf of its constituent parts.
In a healthy system, power is distributed and shared. When one becomes too powerful and balance is lost, the system becomes unstable. You can find your society devolving into anarchy, oligarchy, or tyrannic dictatorship. Each form of accountability comes with considerations. Individuals can act at any level they deem appropriate, but they must weigh the consequences of their actions. Systems are vulnerable to market forces and public sentiment, meaning that they're often incentivized to act slowly to avoid taking strong stances. The state's power must be constrained because, due to its outsized power and reach, overreach could be catastrophic for both individuals and society at large.
It is easy to assume the government should curb heinous speech. But that power could quickly spiral out of the control of the other two branches if we give in to that base appeal to authority to fix a societal ill. The state necessarily has a very high bar to clear when criminalizing speech. Restrictions must be as narrow as possible to achieve any state goal. As restrictions become broader, they rely more and more on interpretation. And that is the danger zone.
Hate speech is quintessential example. Hate speech does cause real harm in the real world. It shapes worldviews to the detriment of marginalized people and endangers them by negatively shaping public sentiment, making hateful actions more likely. The danger comes from interpretation.
What constitutes "hate speech"? Who decides? If it is you who defines hate speech, then all is well with the world. But what if it is someone else? This is why I have strong reservations about current legal (and nebulous) limits on speech that have come to exist in case law such as "fighting words" and "real" threats. Pornography's know-it-when-I-see-it test, while the current legal standard, drives me nuts. This ambiguity threatens whoever is not in power, which is precisely the group that needs that protection the most.
America is a polarized country, and the two general world views would probably strongly disagree on what constitutes "hate speech". And you cannot just handwave the issue because there is no clear dominant group. Elections are won and lost on relatively razor thin margins, splitting political power between two very disparate groups. Unless you're willing to literally fight a war over it, you might find yourself on the wrong side of the definition and thus subject to state application of force.
We've landed on a kind of uneasy truce, where we've collectively realized the value of allowing the state to limit very small subsections of speech. The kind of speech that necessarily requires broad, almost universal consensus of not only its unethical nature, but also its clear harm. This is why fraud is codified and sometimes outlawed, but hate speech is not. Fraud relies on objective deception. Hate is a nebulous concept that not everyone agrees on.
Differentiation
So does this mean that unethical speech is good, actually? No. But its unsavory nature is subjective, not objective. The history of human philosophy has been millennia of proving that there are good faith arguments for and against just about any concept you can imagine.
There is a difference between endorsing speech and acknowledging the necessity of its existence. Trying to "solve" the problem of distasteful speech is very likely to create a problem that is much worse, especially in a polarized and pluralistic society.
In early human history, freedom of speech was de facto, often existing in spite of repressive governments or social structures of the time by nature of an analog world, the slower pace of life, and the greater separation (both physical and social) from the populace and the upper rungs of the governmental ladder. As our world shrinks, freedom of speech must become de jure to ensure its survival. The state's reach and presence is becoming ubiquitous and its ability to insert itself into day to day life is growing. When every thought you have is on the internet, a mechanized communication calculator that can be monitored and manipulated by the power of the state, your ability to get away with saying something the state considers untoward vanishes.
You must have the ability to say the untoward thing without reprisal from the state. Accountability must be applied from "lesser" branches. Legitimacy of enforcement is derived by the power of the branch versus the derivation from the norm. As state power becomes almost infinite due to its monopoly on violence coupled with its near ubiquitous presence in our lives via the internet, the space where suppression of speech is morally defensible becomes vanishingly small.