I. Fundamental Freedoms

For citizens of modern liberal democracies, few freedoms seem more fundamental than the “freedom of speech” or “expression.”Footnote ¹ The canonical human rights documents of the twentieth century enshrined it as second only to the freedom of conscience.Footnote ² Likewise, the classical liberal doctrine, which asserts the priority of the right to free expression as a necessary extension of the freedom of thought, has been widely embraced by political philosophers.Footnote ³

Accordingly, the increasingly controversial status of this formerly fundamental certainty can be disorienting. In the United States, public debate on matters ranging from hate speech and no platforming, to pornography and gender-neutral pronouns have been framed as conflicts between those who are for “free speech” and those who are against it.Footnote ⁴ Yet many critics of the classical liberal doctrine reject this framing. They position themselves instead as defenders of freedom of expression against those who would misconstrue it as a license to offend, intimidate, or harm others. To paraphrase Catharine MacKinnon: “Any system of freedom of expression that does not address a problem where the free speech of some silences the free speech of others, is not serious about securing freedom of expression.”Footnote ⁵ On this view, the “silencing speech” of racists, sexists, or (increasingly) “trans-exclusionary” feminists, for example, should therefore be suppressed, or they themselves excluded from debate in order to secure the equal right to free expression for members of vulnerable groups.Footnote ⁶

For defenders of the classical liberal doctrine, any argument that justifies censorship in the name of free expression must appear confused, at best. Still, with both sides laying claim to the same principle, the disagreement would seem to reduce to a question of distributive justice, and whether—or which—restrictions on some people’s speech are necessary to render freedom of expression equally effective for all.Footnote ⁷ In this essay, however, I argue that the reduction of the multiple values at stake in current controversies to a single value has obscured significant theoretical and practical tensions between two distinct claims: to free expression, on the one hand, and to equal speech, on the other.Footnote ⁸

Far from being synonyms, the former describes a principle of frankness grounded in the freedom of thought, and thus claims a right to speak or otherwise manifest the inward contents of one’s mind outwardly, whatever they may be, without interference. The latter, by contrast, asserts a claim to address others publicly and discursively, and thus in turn involves a further claim to their attention and consideration. Accordingly, the equality demanded by “equal speech” is not that of the equal distribution of expressive opportunities, but rather a relational demand for recognition as an equal speaker, one whose voice should be heard and counted “on a par” with others.Footnote ⁹ This latter ideal, I believe, better explains the concerns raised by critics of the classical liberal doctrine than do their own appeals to freedom of expression.

In what follows, I explore the theory of equal speech with reference to the ancient Athenian practice of isegoria, the equal right of all male citizens in good standing to address the democratic assembly. I suggest that contemporary debates have been hampered, on the one hand, by the overextension of the phrase “freedom of expression,” and by the limitations of treating problems of free speech as primarily issues of distributive justice, on the other. I begin, in Section II, by tracing the conceptual collapse of “free speech” into the undifferentiated category of “free expression” in the nineteenth century, before charting how the latter category continues to frame the arguments put forward even by those most critical of the classical liberal doctrine. In Sections III and IV, I describe Athenian isegoria before theorizing equal speech as a relational ideal concerned not with what rights and opportunities are to be distributed equally to speakers, but with the prior question of who should count as an “equal speaker” in the first place, and on what basis.Footnote ¹⁰ “Equal speech” thus asserts the parity of potential speakers, which is then recognized and reaffirmed through their equal claim to a public hearing and others’ consideration of what they say.

Next, in Section V, I show how concerns about the epistemic and status harms of “silencing” speech raised by critics of the classical liberal doctrine are better grounded in this relational ideal of equal speech than in an individual’s right to express her thoughts freely to others. Moreover, insofar as these harms are taken to provide grounds for suppression and exclusion, the ideal of equal speech appears to be more closely connected with the freedom of association than freedom of thought. This, I argue, explains the further rights to negative discrimination claimed by critics of the classical doctrine when it comes to speech or speakers they deem to undermine the parity of voices in a society of equal speakers.

To understand the critics’ view, however, is not to endorse it. By way of conclusion, I highlight the difficulties facing efforts to realize the ideal of equal speech today, given the size and diversity of the modern public sphere, as well as the increasingly scant resource of audience attention. The arguments I present here help us to see why recent technological advances that offer ever more equal access to opportunities for expressive freedom (for example, social media platforms) put pressure on the presumption of parity between potential speakers. Noticing this draws our attention to the continuing—and potentially problematic—importance of exclusion in constituting effective sites of equal speech today.

II. Free Your Mind (and the Rest Will Follow)

The classical liberal doctrine of free expression, which grounds the right to free speech in freedom of thought, has deep historical roots. In the seventeenth century, many of the Protestant dissenters fleeing England for America argued that the liberty of conscience demanded a further “evangelical liberty” to proselytize.Footnote ¹¹ This religious argument would later be rendered secular and respectable by John Stuart Mill.Footnote ¹² On Liberty (1859) made clear that “the liberty of expressing and publishing opinions” should be entitled to “absolute freedom” and therefore exempted from the harm principle “being almost of as much importance as the liberty of thought itself” and “practically inseparable from it.”Footnote ¹³ Mill did not (as is sometimes assumed) think that speech was “harmless”; rather, the importance he ascribed to personal autonomy as a presumptively progressive principle led him to believe that, except in cases of direct incitement, the long-term benefits would outweigh the harms.

Mill would thus likely reject contemporary efforts to justify restrictions on speech by emphasizing the harms it can inflict on others.Footnote ¹⁴ Still, such arguments are a logical consequence of a process of conceptual innovation and collapse in which Mill and other nineteenth-century speech radicals were complicit.Footnote ¹⁵ While eighteenth-century texts like the First Amendment distinguished “freedom of speech” from that of “the press” as involving distinct communicative modes and media,Footnote ¹⁶ the catch-all phrase “freedom of expression” rose to prominence in the following centuries for largely pragmatic reasons. In this period, rapid innovation in communications technologies collapsed the distinction between the traditional methods for amplifying the spoken and written word—namely, “the platform” and “the press.” With the arrival of photography (1826), the telegraph (1844), the telephone (1849), the phonograph (1877), and radio transmission (1895), activists and jurists in Britain and America needed a concept that could accommodate verbal and written forms of communication, as well as nonverbal acts of protest and works of art.

These developments set the stage in the twentieth century for symbolic activities like pornography (1988) and flag burning (1989) to provide fodder for landmark First Amendment cases under the unifying rubric of “free speech.” Given that all of these media could be used to externalize or “express” an individual’s internal states—her thoughts, feelings, ideas, and so on—why should “speech,” construed narrowly as the spoken or written word, be special? It was in this context that feminists like Catharine MacKinnon and critical race theorists like Mari Matsuda began to argue that pornographic and racist “speech,” whether expressed through words, images, or symbolic gestures, could also cause real people very real harms.Footnote ¹⁷ In doing so, they embraced the conceptual collapse between the “freedom of speech” and “freedom of expression” begun by nineteenth-century liberals like Mill, while placing far greater weight on the effects that these various forms of expression might have on their recipients.

More recent critics of the classical liberal doctrine have extended this focus. Following MacKinnon, Rae Langton, Jennifer Hornsby, Jeremy Waldron, and Mary-Kate McGowan, among others, have drawn on J. L. Austin’s theory of speech-acts to theorize the “illocutionary” or “performative” dimension of hateful expression as constituting a kind of harm in and of itself, in this case, to others’ “basic social standing” and “recognition as social equals.”Footnote ¹⁸ According to this theory, sexist and racist speech-acts are objectionable because they constitute acts of “ranking” others as inferior and so “fix facts” about the “positions of groups … within the social hierarchy.”Footnote ¹⁹ Because the recipients of sexist and racist speech are themselves potential speakers, as well as potential auditors for future speech by members of stigmatized groups, these critics argue that such speech creates a class of underprivileged speakers whose voices are effectively silenced when their utterances are unable to receive “uptake” from their audiences.Footnote ²⁰

For these critics, then, one’s freedom of expression hinges in an important way on how—or that—one’s expression is received by one’s audience. In order to be effective on this account, the right to free expression would seem to imply a further right to be heard, and thus a corresponding duty to attend or listen on the part of one’s audience. This is in stark contrast with the classical liberal view, which insists only on the duty of noninterference. For Mill and his inheritors, audience members are at liberty to “correct” the wayward and explain the offensiveness of their thoughts and actions, but this is an exercise of their own expressive freedom.Footnote ²¹ Mill’s listeners have no duties to listen to anyone at all, let alone to accept what has been said, but only to refrain from restraining or punishing the speaker.

For critics of the classical doctrine, noninterference is clearly not enough—indeed, when it comes to “silencing speech,” interference in the form of suppression and exclusion would seem to be required. It is striking, then, that instead of rejecting free expression, critics like Langton still follow MacKinnon in insisting that unregulated speech is objectionable on the grounds of free expression itself, thus suggesting that this principle permits—or even mandates—the silencing of certain speakers. From the perspective of defenders of the liberal conception, such arguments appear hypocritical, if not oxymoronic: “Freedom for me, but not for thee—and in the name of equality!” If the equal right of all to express oneself is understood as the right of individuals to externalize their thoughts, then suppressing or excluding any speaker on the basis of what they might say would seem clearly to violate that right. Racists and sexists, after all, are people, too—with an equal right to express the inward contents of their minds outwardly without interference.

III. Isegoria in Practice

There are, of course, other ways of justifying free speech, in particular, without resorting to the liberal doctrine of free expression. Democratic defenses of free speech have long emphasized its role in public legitimation and will-formation. For many political theorists, freedom of speech is essential in making a society democratic by giving people “a voice” or “say” in how they are governed.Footnote ²² As Elizabeth Anderson has pointed out, this “say” is a matter of “talk” (that is, of deliberation and discussion in the public sphere), as well as votes.Footnote ²³ The democratic case for free speech thus introduces an importantly relational aspect in the demand that people be free not only to speak, but also to be heard by their fellow citizens. On this view, it matters less that every individual be able to express her thoughts, than that society as a whole has a democratic character in virtue of each member having a say, and thus a voice that counts.

The connection between free speech and democracy can be glimpsed in the ancient Athenian ideal of isegoria. Footnote ²⁴ Unlike the alternative notion of parrhesia (from the Greek pan + rhesis, meaning literally “all saying”),Footnote ²⁵ isegoria emphasized the public and relational character of speech as the exchange of logoi—that is, of words or arguments. Although both parrhesia and isegoria are routinely translated into modern English as “freedom of speech,” the latter means something more like “equal public address.” The verb agoreuien, from which isegoria derives, shares a root with the word agora or marketplace—that is, a public place where people, including philosophers like Socrates, would gather together and talk.Footnote ²⁶

Unlike parrhesia, Athenian isegoria was associated with one political institution in particular, the democratic assembly or ekklesia. Footnote ²⁷ This assembly convened regularly on the top of a hill in Athens called the Pnyx. The herald would ask, “Who wants to address the assemblymen (boulemenoi)?” and the selected volunteer would ascend the bema or speaker’s platform. In theory, isegoria meant that any adult male citizen in good standing had the right to address his fellow citizens. In practice, time pressures (all debates had to be concluded within a single day) and convention meant that access to the bema was limited, dominated by the practiced rhetoricians and elder statesmen seated near the front.

One might thus be tempted to dismiss isegoria as yet another democratic institution dressed up in the language of equality, but steeped in aristocratic privilege. That would be too quick. Consider the treatment of Thersites, the plebeian in Homer’s Iliad who memorably practices parrhesia in speaking out publicly against King Agamemnon.Footnote ²⁸ While modern audiences tend to root for Thersites, the verdict of the poem is clear. “Brilliant Odysseus” tells him off and soundly beats Thersites across the back (to the delight of the poor man’s fellow soldiers) for forgetting his place and claiming an equal right to address those who were not his peers.

Compare this with the following incident in democratic Athens reported by Xenophon. When a young Athenian aristocrat by the name of Glaucon (brother of Plato and erstwhile interlocutor of Socrates in the Republic) addressed the ekklesia because he “was attempting to become an orator and striving for headship in the state, though he was less than twenty years old,” he was pulled off the platform by his fellow citizens, who found him ridiculous.Footnote ²⁹ Consider this the first recorded incident of “de-platforming” in history. Despite his aristocratic birth, wealth, beauty, and education, Glaucon’s practice of isegoria was still subject to the judgment of his fellow assemblymen, who—although the majority were of a much lower social status—considered him and what he had to say unworthy. As in the case of Thersites, the “unworthy” speaker was suppressed and excluded, only in this case he was an aristocrat silenced by commoners.Footnote ³⁰

Athens was far from the only democracy in the ancient world.Footnote ³¹ Still, contemporaries understood the Athenian principle of isegoria as something special. Indeed, the historian Herodotus described the form of government at Athens as isegoria, rather than demokratia. Footnote ³² As its etymology suggests, isegoria was fundamentally about equality. As such, it distinguished Athens from all other Greek poleis or city-states, not because it excluded women or held slaves (so did every society in the history of humankind until very recently), but because it included the poor and gave them a voice on a par with the rich or well-born. Isegoria meant that even the thetes—working Athenians who could not afford armor and rowed in the fleet—were counted as political equals with an equal right to address the ekklesia and be heard. Athens even took positive steps to render this equality of public speech effective by introducing pay for the poorest citizens to attend the assembly and serve as jurors in the courts. While isegoria did not demand that all exercise their right to speak (most did not), it was truly radical in allowing every Tom, Dick, and Iorgos—regardless of wealth or social background—not only to vote, but to speak publicly and receive the attentive consideration of his fellow citizens in turn.

IV. Theorizing Equal Speech

Taking a step back, what can the practice of isegoria at Athens tell us about claims to equal speech today, in contrast with modern theories of free expression?

At first glance, isegoria would seem to be continuous with a distributive justice approach to freedom of expression.Footnote ³³ “Equal speech,” on this view, would be a principle dictating that societies ensure that those who are equal have an equal opportunity to express their thoughts and be heard—through equal shares of speaking rights, turns, time, audience attention, and so forth. Where access to these conditions of expression is limited (due to time, space, acoustics, or the human condition), that access should be distributed according to some justifiable principle of priority, as it was at Athens according to seniority and rhetorical skill. Seen this way, one might view the Athenian decision to incentivize participation by the poor in the ekklesia through pay—and the permission of de-platforming and shouting over unready aristocrats like Glaucon—as an early example of affirmative action aimed to make the equal right to expressive opportunity effective for all.

But this reading misses where the real action lies in the ideal of equal speech. Rather than concerning the equal distribution of rights among equals, by ensuring equal opportunity for speech by providing incentives, removing obstacles, and so forth, isegoria addresses the prior question: namely, who counts as an “equal speaker” in the first place, and on what basis?Footnote ³⁴

Intuitively, one might understand the equality of speakers underlying equal speech as a kind of qualitative identity or sameness. Different persons are considered “equals” of equal status insofar as they are equally human beings, citizens, and so on.Footnote ³⁵ Indeed, in discussions of Athenian democracy and its associated privileges, commentators ever since Aristotle have treated the egalitarian premise as one of sameness in this sense. Adult Athenians were said to be “equal” in virtue of being equally free by birth; therefore, as equal citizens, they were entitled to equal rights, including the right to isegoria. Footnote ³⁶

But as Aristotle himself pointed out, plenty of Athenian citizens were, in fact, excluded from the ekklesia, and hence from the practice of isegoria—not only women (whom Aristotle acknowledged as making up half of the citizen-bodyFootnote ³⁷), but also male citizens convicted of certain crimes. The crimes in question—prostitution and bribe-taking—were significant as “degrading” abdications of independence. Prostitution, in particular, was a problem because male prostitutes made themselves like women in allowing themselves to be penetrated sexually. Thus, even if all adult Athenians were equally citizens of Athens, some were thus viewed as justifiably excluded from isegoria as inferiors whose voices should no longer count.

Of course, we might understand the status of “equal speaker” in several ways. For example, we might consider different individuals as being “equal” in virtue of their equal participation in some greater whole or unity—namely, the People. Democratic theorists today are often drawn to Athenian institutions like the ekklesia and the jury courts as the purest practical expression of popular self-government. It may thus be tempting to think of isegoria as a further expression of the same principle. If the demos rules in democracy by allowing its representative members to have an equal say, the voices of individual assemblymen should “count” as parts of that larger whole.Footnote ³⁸ Here, one might recall Aristotle’s description of the demos as a giant man with many ears, eyes, hands, and so on, with the addition of one, big mouth.Footnote ³⁹

While tempting, such an interpretation of isegoria risks conflating the distinction between democratic “talk” and “votes” highlighted by Anderson.Footnote ⁴⁰ As Melissa Schwartzberg has shown, there was an important difference between the original and fairly ubiquitous democratic practice of voice-voting to be found throughout the Hellenic world, and the peculiarly Athenian system of counted ballots, on the one hand, and isegoria, on the other.Footnote ⁴¹ Schwartzberg argues that while “clumping” mechanisms like acclamatory voice-voting “effectively captur[e] the notion of a community speaking univocally,”Footnote ⁴² “to count votes … is to affirm the weight of each individual’s judgment.”Footnote ⁴³ Indeed the “counting” measures that came to define Athenian democracy developed in the first place as aristocratic principles in elite councils like the Spartan Senate (Gerousia) and Athenian Areopagus. Schwartzberg concludes that these measures developed as a way to acknowledge the “epistemic dignity” of those rendering decisions by emphasizing “the importance of the members’ individual and independent judgement.”Footnote ⁴⁴

Schwartzberg’s evaluative insight applies to isegoria as well. This institution also acknowledged and maintained the “epistemic dignity” of each assemblyman, by insisting that his voice counted as deserving of a public hearing and consideration by his fellows. Again, Athens was radical because it allowed poor male citizens not only to vote en masse, but to speak publicly—and to hear and judge their fellow speakers, in turn. In doing so, it effectively elevated the poor to the status of peers. Their voices thus had worth and weight on a par with, if not exactly equal to, that of the expert and well-heeled orators sitting in the front.

The concept of parity revived recently by Ruth Chang as a relation not of quantity or quality, but comparative value,Footnote ⁴⁵ seems to be implicit in many contemporary theories of dignity and basic equality.Footnote ⁴⁶ From the Latin par, the concept seems to have originated in accounting to describe two different things that are nonetheless deemed similar enough to be matching (think a “pair” of shoes).Footnote ⁴⁷ Crucially, when applied to persons, parity connotes a sense of “worthiness” and a high status worth having. One can see this relational ideal underlying Waldron’s account of human dignity as a universalization of aristocratic rank,Footnote ⁴⁸ as well as Nancy Fraser’s definition of justice as “participatory parity” in which injustice is thus that which “prevent[s] some people from participating on a par with others … [and] as peers in social life.”Footnote ⁴⁹ Unlike mere equals, peers have social worth and weight, and this worth and weight must be acknowledged in their social and political relations.Footnote ⁵⁰ They count.

On this view, what distinguished the practice of isegoria in Athens, then, was an underlying theory of the parity of equal speakers. Every assemblyman, regardless of wealth or education, could claim the same right—not only to speak, but to address his colleagues, and have the weight of his words considered in turn. This public hearing was not afforded to members of the ekklesia as representative parts of the Demos or as equal citizens by birth, but as pares or peers in virtue of their epistemic dignity and independence. This did not mean, of course, that all of those peers’ voices were considered to be equally valuable; deference might still be given to those with greater experience or knowledge. But crucially, those who were epistemically privileged did not have any authority over their peers in virtue of that superiority. All remained “equal speakers” in this sense.Footnote ⁵¹

V. Free Expression versus Equal Speech

The theory of “equal speech” informing Athenian isegoria can therefore be distinguished from the modern understanding of free expression in several important respects. Grounded in freedom of thought or conscience, the principle of free expression is a universalizing principle of equality-as-sameness: those who equally have minds should have an equal right to express the inner contents of their minds (“thoughts”) outwardly. By contrast, isegoria was a demand for recognition as an equal—or, more precisely, as a peer with epistemic dignity—and so for the privilege of addressing and being heard by one’s peers, too. One’s value as a speaker must be acknowledged by one’s audience, who will regard one’s contribution as presumptively valuable and consider its content, in turn.

While speech can be valued as the expression of one’s innermost thoughts, as in the classical liberal doctrine, the ideal of equal speech grounds its value instead in the claims, judgments, and arguments of those with epistemic dignity—just as reasoned speeches (logoi) were valued in the Athenian ekklesia, but the presumptuous preening of ignorant aristocrats like Glaucon was not. In this way, speech is distinguished from other forms of expression while emphasizing its close connection with social relations. One’s peers can be called upon to respond in ways unique to speech—with agreement or disagreement, questioning, rebuttal or refutation—in each case attending carefully to its content. Even when equal speakers are not treated respectfully—as when Glaucon was pulled from the bema—this is not because they have been prejudged as someone unworthy to be heard. Instead, it is an expression of the audience’s disdain or contempt for speakers who reveal themselves to be undeserving of attention by what they say.Footnote ⁵²

As such, this ideal of equal speech directly addresses the concerns about the epistemic and status harms implicit in “silencing” speech voiced by critics of the classical liberal doctrine. While Langton and others insist that they, too, are committed to free expression, their emphasis on audience attention and “uptake” as essential to expressive equality is much closer to the parity of speakers in Athens, recognized and reaffirmed through the practice of equal speech. Likewise, their concern seems to be less with an individual right to expression, and more with the egalitarian character and quality of social relations, which leads them in turn to insist on the importance of evaluating the content of what is said.

This analysis brings us to the flipside—or dark side—of the ideal of equal speech based on the parity of speakers. Unlike free expression, this ideal is necessarily evaluative, as well as discursive; hence it involves both positive and negative discrimination (in the form of suppression or exclusion) in favor of those who are deemed to be equals in good standing over those who are not. In the case of isegoria, this exclusion was essential, not incidental. The status of assemblymen in Athens as peers, and the weight their voices consequently carried, was pegged directly to the comparative weightlessness of the voices that were excluded from that forum: slaves, resident foreigners, convicts, and women above all.

There is a tendency among scholars partial to Athenian democracy to treat these exclusions as “historical baggage” or “blind spots”—unfortunate oversights produced by prejudice that nonetheless do not materially impact the theory.Footnote ⁵³ But this neglects the fact that the value of isegoria for those who possessed it was predicated on the distinction, if not necessarily the superiority, of those whose voices enjoyed a presumptive claim to others’ attention and consideration over those whose voices did not. The exigencies of parity meant that the weight of men’s public speech depended practically and theoretically, on the weightlessness of women’s speech.

This is not to say that it was impossible for a woman to pipe up from the margins. In order to do so, however, she needed somehow to claim an epistemic privilege (or better yet, authority) that might give her voice more than equal weight. Consider the female priestesses who served as oracles, most famously the Pythia at Delphi. This suggests that the practice of isegoria in Athens could accommodate marginal voices from those who were not peers because they were epistemic superiors—so long as they were kept safely away from the ekklesia themselves, as a threat to the equal speech of others. The presence of such vast differences of status or epistemic authority in the association of hitherto equal speakers would necessarily undermine the claims of ordinary male citizens to have voices worth considering. Why should one listen to Tom, Dick or Iorgos when he could receive wisdom directly from the gods?

To note that the parity of speakers depends on exclusion is not, of course, to say that these constitutive exclusions must always be hierarchically ordered, let alone based on ascriptive identities and invidious distinctions, as they were in Athens. But it does help explain why the claim to equal speech cannot be reduced simply to equal freedom or equal expressive opportunity. Rather, equal speech is about reliably recognizing and reinforcing who is “on a par” as a speaker, whose voice should count in a given context, and whose should not. It is thus intimately bound up with the freedom of association, and the ability to include and exclude members in accordance with the ends of the association in question (in the case of the Athenian ekklesia, democratic self-government). If everyone counts, and counts equally, the only solution may be to “level-down,” in which case nobody’s voice need matter very much at all.Footnote ⁵⁴

The ideal of equal speech thus captures the normative vision of today’s critics of the liberal doctrine much better than do their own appeals to freedom of expression. Rather than starting from an individual right to express one’s thoughts, equal speech mirrors the concerns of Langton and others in affirming the weight of socially underprivileged or marginalized voices and asserting their right to be included and heard, rather than prejudicially dismissed. Moreover, it makes better sense of proposals to censor, no-platform, or otherwise exclude certain speakers on the basis of what they (might) say: rather than being hypocritical claims to freedom of expression “for me, not thee,” these proposals follow from the perceived need to protect the peer status of vulnerable voices within the association of equal speakers. Finally, this ideal of equal speech is not vulnerable to the leveling-down objection, as the marginalized are not treated as mere equals, but rather as peers entitled to high status and worthy of a public hearing.