This is part two of a two-part post. Part one is 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.
Marx through the linguistic turn
Even if Marx does presuppose the second traditionally overlooked paradigm of rights with which I closed Part One of the analysis, why would “free speech” stand as its exemplar as opposed, say, to fair trials or freedoms from arbitrary killing or torture—or indeed as opposed to basic access to food and water? Even when we farm our own food or fetch our own water—with the rare exception of some forest hermit genuinely living in a “state of nature”—we only ever do so as citizens embedded within socio-political regimes. That reality becomes even more obvious for those of us who don’t farm our food or fetch our water. We rely on background legal arrangements to ensure our pursuit of basic goods, whether they be food and water or fair trials and protections from torture. Marx proposes not a naïve materialism whereby social institutions abstractly derive from economic relationships, but a materialism already inscribed within socio-economic life, inherently embedded in language. Our access is not to food and water as such, but only insofar as they are grounded in socio-political contexts for which language supplies not merely a tool, but is always necessarily constitutive. Like any other political thinker, Marx formulates no critique and no remedy but through language.
Some may sense a whiff of Habermas in that “linguistic Marx,” a Marx ushered through the linguistic turn. Habermas seeks to balance the discursive ground of politics against powerful state and economic forces that debilitate the sphere of public discourse (Öffentlichkeit). He grounds democratic norms and institutions within public discourse as their necessary condition. A question arises, however, as to whether that foundational role for free speech translates satisfactorily into legal terms. Free speech, for Habermas, remains guaranteed in law only through a liberal right of free speech, alongside any number of other rights.
Marx goes further. In casting doubt on liberal rights, he does not bury free speech. He frees it. What we need is not something weaker than a free speech right, but something stronger. Marx lends free speech the foundational status that it lacks when tossed onto a shopping list of “rights” alongside ten or twenty others, none of which are imaginable except as already formulated in language and indeed within public discourse. Having inaugurated his corpus with a crusade against censorship, Marx then proceeds not to “become” a political theorist, as if that were an ontological state, but to write politics, to proceed through language as the necessary medium for any critique, for any politics, for any economics.
That model does not amount to “free speech absolutism.” That, as I have argued elsewhere, can never be a legally meaningful concept. As a condition for political legitimacy free speech instead entails what is better described as “viewpoint absolutism”: no speakers may be censored solely on grounds of their dangerous, offensive, or provocative viewpoints. All three adjectives apply to Marx in his time. Recall him citing Shakespeare to describe money as something that equates “the universal God” with “the universal whore.” Recall his snipe that “Christians have become Jews,” mocking both groups: hate speech?
If Marx”s theory of free speech is viewpoint absolutist, however, wouldn’t that freedom be feasible only after a real socialist revolution had occurred? Don’t entrenched hierarchies before that transition justify regulating speech? We must certainly make no mistake that Marx’s main targets are mighty power structures. Still, despite witnessing slavery, exploitation, child labour, and women’s oppression, Marx never condemns free speech enjoyed by powerful interests. He seeks only a freedom to challenge them. His stance on free speech is, in that respect, classically liberal. But it is not rights-based. Like liberals, Marx would surely admit some non-viewpoint-selective limits, that is, limits imposed irrespective of any worldview (or none at all) they may represent, such as penalties for commercial fraud or courtroom perjury. He rightly avoids, however, the value-pluralist weighing and balancing characteristic of most rights regimes, whereby government may legitimately limit provocative speech in order to serve some competing value. Marx admittedly would never know later atrocities often linked to speech, such as genocides in Nazi Germany, Rwanda, or the former Yugoslavia. Contrary to popular opinion today, however, those were crimes not of speech but of mobilisation, occurring under regimes not of free speech but of constrained speech.
Despite stemming from a converted family, Marx would be maligned both for “being” and “looking” Jewish. He knows all about offensive speech. Yet when we move past “undergraduate” pamphlets like The Communist Manifesto and examine his deeper writings on law, social alienation, or ideological superstructure, we find a thinker ravenous to take on any and every ethical challenge. Marx in no way thinks that he or anyone will benefit from “minor” viewpoint restrictions on general public discourse. That certainly is not because he—of all people—underestimates the force of oppressive ideas.
Some leftists today certainly reject censorship. Perhaps the only one to do so unequivocally is Raoul Vaneigem. First published in 2008, his book Rien n’est sacré, tout peut se dire presents not free speech but silence as the servile, submissive stance under capitalism. For Vaneigem (perhaps also for Rancière), when voices can be muted the state always wins. In the current climate, Vaneigem has found little resonance among fellow travellers. Judith Butler has moved towards free speech, though leaving unclear whether she would accept any viewpoint-selective limitations. Vaneigem’s book includes no actual discussion of Marx. But he need not worry about a betrayal. Karl would be best pleased.
 J Habermas, 1981. Theorie des kommunikativen Handelns. 8th. Vol. 1 & 2. Frankfurt a.M.: Suhrkamp.
 J Habermas, 1998. Faktizität und Geltung. Frankfurt a.M.: Suhrkamp.
 E Heinze (2016), Hate Speech and Democratic Citizenship, Oxford: Oxford University Press, 40-43.
 Ibid, 77.
 K Marx ( 1968). Ökonomisch-philosophische Manuskripte, in 40 Marx-Engels Werke: Ergänzungsband 1, above n. 1, at 369, 465-588, at 565 (discussing Timon of Athens).
 Marx, above n. 1, at 373.
 On essential differences between liberal and democratic concepts to free speech, see Heinze, above n. 9 at 11-14, 55-68, 88-105.
 Ibid, 2–4, 59-66.
 The US stands as an important exception. Ibid, 149, 181-94. Cf. generally, e.g., R. Post (1995), Constitutional Domains: Democracy, Community, Management. Cambridge, MA: Harvard University Press.
 See, for example, M Thiel (ed.) (2003). Wehrhafte Demokratie: Beiträge über die Regelungen zum Schutze der freiheitlichen demokratischen Grundordnung. Tübingen: Mohr Siebeck.
 See, for example, A. Tsesis (2002), Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements. New York: New York University Press.
 U.K. Preuß (2002). “Die empfindsame Demokratie,” in C. Leggewie, & H. Meier, Verbot der NPD oder mit Rechtsradikalen leben? Frankfurt a.M.: Suhrkamp, 104-19. Cf. Heinze, above n. 9 at 133-35.
 R Vaneigem (2003). Rien n’est sacré, tout peut se dire. Paris: La Découverte.
 Heinze, “The Constitution of the Constitution,” in Rancière and Law, J. Extabe & M. Lopez, eds., Abingdon: Routledge, 2017, 111-28
 J Butler (1997). Excitable Speech: A Politics of the Performative. New York: Routledge.
 See critically, for example, A Howe (1998). “Review of Judith Butler, Excitable Speech,” International Journal for the Semiotics of Law, 11 (31), 95-104.