This is part one of a two-part post. Part two will be available here.
Abstract: Much controversy has arisen around leftist attempts to curb provocative expression, particularly hate speech directed at certain vulnerable social groups. That coupling of leftism with censorship is, however, historically recent. For Marx, controls on speech serve more to hamper human emancipation than to promote it. In this essay it is argued that Marx’s critiques of rights are not as categorical as is sometimes thought. The “property right” paradigm does indeed represent the type of individual right that Marx pervasively condemns because he condemns the underlying socio-economic interest. It is argued, however, that Marx also tacitly adopts a second paradigm, called here a “free speech” paradigm, to represent interests that Marx by no means rejects. For those interests—including free speech, freedom of torture, and other essential goods—Marx condemns rights not because he rejects the concomitant interests but, to the contrary, because he sees the right as betraying an utterly vital interest.
Introduction
Karl Marx is nothing if not a theorist of power imbalance. When free speech militates to entrench socio-economic hierarchies, Marx demands limits. Right?
Not at all.
Or rather, free speech is never a major theme for Marx, but he would have demanded limits if he had turned his attention to the question. Right? To the contrary, censorship haunts Marx’s entire life. His earliest publications dissect and heartily mock it.
And yet Marx is a pre-eminent critic of liberal rights. Surely he cannot condemn rights regimes while at the same time vindicating rights of free speech? So what exactly is Marx’s theory of free speech? In emancipating words from rights, Marx never compromises or dilutes free speech, but rather assigns to it a stronger, more foundational role than even liberalism allows.
Surface rights—underlying interests
In On the Jewish Question Karl Marx famously probes the 1789 Déclaration des droits de l’homme et du citoyen. Before Marx, the Declaration’s concepts of “man” (homme) and “citizen” (citoyen) had been read as complementary, corresponding, respectively, to the “civil” and “political” rights still current today. For Marx, by contrast, those “civil” and “political” spheres, far from blending, end up mutually antagonistic.
Political rights, such as the franchise, enable cooperation among citizens within self-government. Civil rights, by contrast, shield individuals from government and from each other. The civil (“bourgeois”) sphere safeguards individual self-interest to the extent that others are not “harmed.” But in liberal society, Marx explains, “harm” mostly just means impeding others from enjoying their civil rights. Individual rights regimes must therefore provide security (Sicherheit) for individuals to enjoy their rights free from harm caused by others. The press is formally protected by such a right, yet ends up “fully annihilated”[1] once government declares a security risk. (When Carl Schmitt unmasks rights regimes as promising individual empowerment whilst actually consolidating state power, he is simply copying Marx.)
For Marx, writing in the shadow of Locke, the property right stands as a paradigm for individual rights: “The human right of private property is . . . the right to enjoy and to dispose of one’s estate arbitrarily . . . unconnected to other humans, independently of society—a right of self-interest.”[2] That “selfish” right undergirds the chasms between wealth and poverty, power and servitude, that would disfigure the Nineteenth century. Marx condemns the property right because he condemns unbridled individual wealth accumulation, as Western philosophers have done as far back as Plato and Aristotle. In other words, Marx condemns the right because he condemns the underlying interest. At first glance, that paradigm seems indeed to extend to other rights. For example, Marx views religion as an interest that, for centuries, furnishes legitimating norms and institutions for oppressive hierarchies. There again, he can condemn the right because he condemns the underlying interest. Free speech, too, appears to be equal only in principle, whilst entrenching substantive inequalities in practice.[3]
On closer examination, however, the property right does not furnish the paradigm for all other rights. Marx condemns other types of rights not because he condemns the underlying interest, but, to the contrary, because the right as a right fails to protect a vital interest. Marx mentions, for example, the secrecy of postal communications, another interest that ends up readily overridden by state security claims.[4] He ridicules that right not because he condemns the underlying interest, but because a civil rights regime so poorly shields it.
Far from credibly promulgating Marx’s ideas, any straightforward extrapolation from his condemnations of rights to condemnations of all and sundry interests covered by them is textbook distortion of Marxism. That logic led, in one regime after another, to the monstrosities of Stalinism and Maoism. Those inverted Marxisms produced mass killings, torture, internal exiles and displacements, arbitrary arrests and detentions, kangaroo courts, disproportionate punishments, inadequate conditions of detention, ex post facto laws and double jeopardy. Not a syllable in Marx rejects the underlying interests violated under those regimes. He dismisses rights not for protecting, but for failing to protect those interests.
Two paradigms
Does free speech for Marx, like religion or private property, represent a condemnable interest and therefore a condemnable right? Or, to the contrary, as with protections from arbitrary killing or torture, is the right infirm precisely because it betrays an altogether vital underlying interest? Many writers have assumed the former. Free speech debates in recent decades admittedly make little reference to Marx—an unfortunate omission given that conventional free speech advocates rarely progress in their theoretical assumptions much beyond the terms set by Mill. But Marx lingers. Current theories about free speech rights as products of legally protected class privilege remain unthinkable without him.
Those approaches tacitly assume the property right paradigm, whereby regimes of private wealth accumulation and concomitant inequalities reflect a free speech right embedded in oppression, such that wealthy and powerful voices shout above excluded and marginalised ones. Yet the property right paradigm never defines Marx’s express pronouncements about free speech. He publishes two early articles deliciously lampooning censorship. Nothing in his later writing repudiates or even narrows his fateful maxim: “The truly radical cure for censorship would be its abolition.”[5]
At one point he hands the final word to Tacitus: Rara temporum felicitate, ubi quae velis sentire et quae sentias dicere licet, “It is the rare fortune of these days that one may think what one likes and say what one thinks.”[6] Through that quip Marx does not praise, but laments the Nineteenth century. Marx develops, then, two markedly distinct concepts of civil rights. Under the property right paradigm, a right fails because the underlying interest fails; under what I shall in Part Two call his free speech paradigm, the right fails because it fails the underlying interest.
[1] K Marx ([1844] 1956). “Zur Judenfrage,” in 1 Marx-Engels Werke, Berlin: Dietz, 347-77, at 367 (all translations into English are mine).
[2] Ibid, 365.
[3] See, for example, M Matsuda (et al. eds) (1993). Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment. Boulder, CO: Westview. Cf. critically, e.g., J. Weinstein (1999), Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine. Boulder, CO: Westview; P Molnar & N Strossen (2012). Interview with Nadine Strossen. In M. Herz, & P. Molnar (Eds.), The Content and Context of Hate Speech: Rethinking Regulation and Responses (pp. 378-98). Cambridge: Cambridge University Press.
[4] Marx, above n. 1, at 367.
[5] K Marx ([1842] 1956). “Bemerkungen über die neueste preußische Zensurinstruktion,” id., 3–27, at 27 (original emphasis)
[6] Ibid.
