1. This is consistent, of course, with maintaining that there are some differences between state and social coercion that are of normative significance.

2. Emerson, Thomas I., The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648 (1955)CrossRefGoogle Scholar.

3. J.S. Mill, On Liberty, in 18 The Collected Works of John Stuart Mill – Essays on Politics and Society Part I 220 (John M. Robson ed., 1977) (my emphasis).

4. Id. at 209 (my emphasis).

5. J.S. Mill, De Tocqueville on Democracy in America, in 18 The Collected Works of John Stuart Mill – Essays on Politics and Society Part I 81 (John M. Robson ed., 1977).

6. 1 Alexis de Tocqueville, Democracy in America 209 (Bruce Frohnen ed., Henry Reeve trans., 2002).

7. Id.

8. For a notable exception, see Michelman, Frank, Conceptions of Democracy in American Constitutional Argument: The Case of Pornography Regulation, 56 Tenn. L. Rev. 291 (1989)Google Scholar. See also Charles Lawrence, Crossburning and the Sound of Silence: Antisubordination Theory and the First Amendment, 37 Vill. L. Rev. 787, 803 (1992). For an insightful discussion of how fear of social sanction such as ostracism can result in expressive reticence, albeit one that frames the issue in terms of self-censorship rather than societal restrictions on freedom, see Loury, Glenn, Self-Censorship in Public Discourse: A Theory of “Political Correctness” and Related Phenomena, 6 Rationality & Soc'y 428 (1994)CrossRefGoogle Scholar.

9. See, e.g., Owen Fiss, The Irony of Free Speech (1996).

10. Caroline West, The Free Speech Argument Against Pornography, 33 Can. J. Phil. 391, 398 (2003); Caroline West, Words that Silence? Freedom of Expression and Racist Hate Speech, in Speech and Harm: Controversies over Free Speech 222, 236 (Ishani Maitra & Mary Kate McGowan eds., 2012); Rae Langton, Speech Acts and Unspeakable Acts, 22 Phil. & Pub. Affs. 293, 315 (1993).

11. Most prominently, in the literature, through the publication of pornography. See Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (1987), at 193. See also Miranda Fricker, Epistemic Injustice: Power and Ethics of Knowing (2007). In particular, Fricker discusses what she terms “pre-emptive testimonial injustice,” under which persons not only are accorded an unjustly lower credibility as speakers; they are, on that basis, not solicited to speak. Id. at 131.

12. Langton, supra note 10; Ishani Maitra, Silencing Speech, 39 Can. J. Phil. 309 (2009).

13. In this way they more closely resemble a social equivalent of prior restraint.

14. As Cohen illustrates the distinction, “[a]t the far end of the difficulty continuum lies the impossible, but it is the unbearable which occupies that position in the case of costliness.” G.A. Cohen, On the Currency of Egalitarian Justice, 99 Ethics 906, 919 (1989).

15. Susan J. Brison, The Autonomy Defence of Free Speech, 108 Ethics 312, 314 (1998).

16. For a valuable collection of such work analyzing some of its lamentable dimensions, see The Offensive Internet (Saul Levmore & Martha C. Nussbaum eds., 2012).

17. Timothy Garton Ash, Freedom of Speech: Ten Principles for a Connected World (2016).

18. Brian Leiter, Cleaning Cyber-Cesspools: Google and Free Speech, in The Offensive Internet 155 (Saul Levmore & Martha C. Nussbaum eds., 2012).

19. As Danielle Keats Citron eloquently puts it, “[t]he Internet guarantees a Nietzschean ‘eternal return’ of damaging disclosures.” See her Mainstreaming Privacy Torts, 98 Cal. L. Rev. 1805, 1813 (2010); see also Daniel Solove, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (2008); Daniel Solove, Speech, Privacy, and Reputation on the Internet, in The Offensive Internet 15 (Saul Levmore & Martha C. Nussbaum eds., 2012); Anupam Chander, Youthful Indiscretion in an Internet Age, in The Offensive Internet 124 (Saul Levmore & Martha C. Nussbaum eds., 2012).

20. For a thorough discussion, see Jon Ronson, So You've Been Publicly Shamed (2015).

21. Id. at 63–86.

22. For some of the work that explores such cases, see Danielle Keats Citron, Hate Crimes in Cyberspace (2014); Danielle Keats Citron, Civil Rights in Our Information Age, in The Offensive Internet 31 (Saul Levmore & Martha C. Nussbaum eds., 2012); Franks, Mary Anne, Sexual Harassment 2.0, 71 Md. L. Rev. 655 (2012)Google Scholar; Gallardo, Kristine, Taming the Internet Pitchfork Mob: Online Public Shaming, the Viral Media Age, and the Communications Decency Act, 19 Vand. J. Ent. & Tech. L. 712 (2017)Google Scholar; Hua, Winhkong, Cybermobs, Civil Conspiracy, and Tort Liability, 44 Fordham Urb. L.J. 1217 (2017)Google Scholar; Klonick, Kate, Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age, 75 Md. L. Rev. 1029 (2016)Google Scholar.

23. For a recent exception, see Danielle Keats Citron, Restricting Speech to Protect It, in Free Speech in the Digital Age 122, 129–130 (Susan J. Brison & Katherine Gelber eds., 2019).

24. To give one example, at a conference in 2013 Adria Richards tweeted a photo of two male audience members with the caption “Not cool. Jokes about forking repo's in a sexual way and ‘big’ dongles. Right behind me.” The tweet led to the organizer of the conference reprimanding the two individuals and reportedly culminated in one of the two being released from his job. In a cruel twist to the case, the shaming rebounded on Richards as she was personally subjected to online vitriol and threats and lost her own job. Russell Brandom, Thug Mentality: How Two Dick Jokes Exploded into DDos and Death Threats, The Verge (Mar. 21, 2013), https://www.theverge.com/2013/3/21/4132752/thug-mentality-how-two-dick-jokes-exploded-into-ddos-and-death-threats. See also Klonick, supra note 22, at 1030–1031.

25. Although I distinguish between online and offline costs, the distinction is not a deep one, and they are seldom neatly segregated from one another in actual instances of social coercion.

26. For an account that emphasizes the importance of disaggregating “hate speech,” see Brown, Alexander, What Is Hate Speech? Part 1: The Myth of Hate, 36 Law & Phil. 419 (2017)CrossRefGoogle Scholar. See also Brown's Hate Speech Law: A Philosophical Examination (2015).

27. Jeremy Waldron, The Harm in Hate Speech (2014).

28. Bhikhu Parekh, The Rushdie Affair: Research Agenda for Political Philosophy, 38 Pol. Stud. 695 (1990).

29. Matsuda, Mari, Legal Storytelling: Public Response to Racist Speech: Considering the Victim's Story, 87 Mich. L. Rev. 2329 (1989)CrossRefGoogle Scholar; Altman, Andrew, Liberalism and Campus Hate Speech: A Philosophical Examination, 103 Ethics 302 (1993)CrossRefGoogle Scholar.

30. Richard Delgado & Jean Stefancic, Must We Defend Nazis? (1997).

31. Seglow, Jonathan, Hate Speech, Dignity and Self-Respect, 19 Ethical Theory & Moral Prac. 1103 (2016)CrossRefGoogle Scholar.

32. Now, there might be suspicion that this argument rests on something of an analytical sleight of hand. It might be said, for instance, that the harms of hate speech are precisely marked by a verbal assault on the status or nature of the person, as opposed to constituting an attack on what persons express. Hate speech is strongly associated with racist and sexist speech for good reason, because it characteristically targets the identity of the victim and not their words or views. If so, the harms of hate speech cannot be included among the costs that are invited by expression and hence their support cannot be recruited for the argument pursued thus far. Although there is some truth to this thought, it involves too crude an understanding of identity, as well as resting on a fallacy. First, even if the harms of hate speech are inflicted on, and targeted toward, the status or identity of the harmed agent, it is wrong to suppose that this necessarily means that they do not pertain to the expression of the agent. Our social identity is often intimately bound up with the beliefs we hold and express, and we are understood by others, and ascribed a certain status, often partly because of how we express ourselves. I believe it is reasonably clear, for instance, that Muslim women who express their religious identity through the wearing of a Burka could be subject to dignitary harm, libel, or subordination precisely as Burka-wearing Muslim women. That is, that they are denigrated precisely for the expression of belief. Furthermore, even if it were true that the harms of hate speech involve damage to a status that is necessarily conceptualized independently of the expression of the affected agent, the prompt for a verbal attack is not necessarily the same as its target. It may have been engaging in protest against the injustice of US segregation that made some civil rights activists the targets of certain instances of racist abuse, for instance.

33. See Matsuda, supra note 29, at 2337, where she connects hate speech with restrictions on freedom, saying, “[i]n order to avoid receiving hate messages, victims … curtail their own exercise of speech rights.” Now, quite plausibly, it is often thought that hate speech supervenes on preexisting relations of subjugation and oppression. Matsuda suggests, for instance, that hate speech harms because it reinforces “historically vertical relations” and is directed against “a historically oppressed group.” Id. at 2357–2358. This might well imply that some groups are more vulnerable to the harms of hate speech than others, and, in turn, more vulnerable to its expression-stifling force. In appealing to the harms of hate speech I do not intend to downplay the role that context and extant injustice plays in underpinning and aggravating the harm. However, it seems quite plausible to maintain that even if some of the associated verbal harm depends on this, there are further dimensions that remain relevantly injurious.

34. It has become familiar to refer to attacks of this kind as “cyber mobs,” or, because of their platform of choice, “Twitter mobs.” “Mob” is an apt descriptor. Being confronted by a mob is an unquestionably unpleasant experience. The mob can be unpredictable and self-emboldening; its hostile purposes can build toward frenzy; it can feel powerful and inescapable. The multiple insults unleashed by the cyber mob conjoin to encourage a collective tone of rejection and disparagement.

35. The recent history of the internet is replete with cases where expression has invited a flurry of such threats. One such case is that of Caroline Criado-Perez, whose campaign in 2017 to feature women on UK banknotes resulted in a torrent of threats and abuse, to the point where she claimed to be receiving up to fifty rape threats an hour. Jessica Elgot, Twitter Rape Abuse of Caroline Criado-Perez Leads to Boycott Threat, HuffPost (July 27, 2013), https://www.huffingtonpost.co.uk/2013/07/27/twitter-rape-abuse_n_3663904.html. For the contention that such abuse tends to be disproportionately targeted toward, or especially impactful on, women, see Citron, supra note 22, at 32; Chander, supra note 19, at 126–127; Franks, supra note 22, at 658.

36. Alluding to the silence that can attend to the nontenured, Matsuda rhetorically asks, “[w]hat don't we hear when some young scholar chooses tenure over controversial speech?” Mari Matsuda, Who Owns Speech, Address at Hofstra School of Law (Nov. 13, 1991).

37. Steve Wyche, Colin Kaepernick Explains Why He Sat During National Anthem, NFL News (Aug. 27, 2016), https://www.nfl.com/news/colin-kaepernick-explains-why-he-sat-during-national-anthem-0ap3000000691077.

38. Kaepernick initially simply sat during the playing of the anthem but then began kneeling, reportedly after discussing the issues with US Army veteran and former NFL player Nate Boyer. Matthew Impelli, A Timeline of Colin Kaepernick's Kneeling in Protest to His Upcoming Workout for NFL Teams, Newsweek (Nov. 14, 2019), https://www.newsweek.com/timeline-colin-kaepernicks-kneeling-protest-his-upcoming-workout-nfl-teams-1471819.

39. In a speech, Trump said about the protests, “[t]hat's a total disrespect of our heritage. That's a total disrespect of everything that we stand for,” and “[w]ouldn't you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a b**** off the field right now. Out! He's fired. He's fired!’” Donald Trump, Speech at Political Rally, Huntsville, AL (Sept. 22, 2017).

40. Nick Wagoner, If Colin Kaepernick Didn't Opt Out, 49ers Would Have Released QB, ESPN (Mar. 2, 2017), https://www.espn.com/nfl/story/_/id/18808233/san-francisco-49ers-released-colin-kaepernick-opt-out.

41. Joshua Cohen says about such cases that where an agent's concern is “to ‘bear witness’ [and in her] view places her under an obligation to speak out … expressive liberty is on a footing with liberty of conscience, and regulations are similarly burdensome.” See Joshua Cohen, Freedom of Expression, 22 Phil. & Pub. Affs. 207, 225 (1993) (his emphasis).

42. John Arlidge & Patrick Wintour, Hoddle's Future in Doubt After Disabled Slur, Guardian (Jan. 30, 1999), https://www.theguardian.com/football/1999/jan/30/newsstory.sport7.

43. Olivia Petter, Waitrose Food Magazine Editor Resigns After Sending Email About ‘Killing Vegans’, Independent (Oct. 31, 2018), https://www.independent.co.uk/life-style/food-and-drink/waitrose-food-magazine-editor-william-sitwell-resign-killing-vegans-a8610106.html.

44. Interestingly, Bono's criticism of Nike was itself a response to the brand's support for Kaepernick and the decision of the company to adopt his image to front a new marketing campaign.

45. Indeed, there are vocations where restrictions on expression seem integral to the successful performance of the role itself, such as patient confidentiality in the case of doctors.

46. The interest persons have in refraining from expressing something with which they deeply disagree, as in the Kaepernick case, is a particularly weighty reason counting against such a loss.

47. Jeremy Waldron, Mill as a Critic of Culture and Society, in J.S. Mill, On Liberty 224, 227 (David Bromwich & George Kateb eds., 2003).

48. Id. at 231.

49. Wertheimer, Alan, Jobs, Qualifications, and Preferences, 94 Ethics 99 (1983)CrossRefGoogle Scholar; Kasper-Lippert Rasmussen, Born Free and Equal? A Philosophical Inquiry into the Nature of Discrimination (2013), at ch. 9; Mason, Andrew, Appearance, Discrimination, and Reaction Qualifications, 25 J. Pol. Phil. 48 (2017)CrossRefGoogle Scholar.

50. For two accounts that explore the interests persons have in expression, see Cohen, supra note 41, at 223–225, and Scanlon, Tim, Freedom of Expression and Categories of Expression, 40 U. Pitt. L. Rev. 519 (1979)Google Scholar.

51. This is consistent with allowing that there is a moral failing in the person and that there are other duties they have in respect of that.

52. Note that a person can boycott an entity that they did not, in any case, previously support, if they embrace a commitment to refraining from support that would preemptively exclude other considerations that may have led them to support. It is important to register, that is, that the full social costs to expression go beyond the immediately obvious inflicted costs (a barrage of insults) and the withdrawn benefits (loss of employment) but also the future opportunities a person is deprived of (their employability; the possibility of association with others).

53. What's more, persons may also have an expressive interest in ceasing to associate with others in order to refrain from expressing approval of something incongruent with their own beliefs. In relation to boycotts this might obtain where it becomes socially understood, in the relevant sense, that failing to participate in the boycott expresses endorsement for the boycotted entity.

54. This is very different from claiming that the duty of expressive toleration requires a general sacrifice of expressive interests in order to protect others.

55. The account I am offering admittedly leaves open the question of what counts as too great a sacrifice. In this way my account offers an outline of the general shape of the duty to refrain from foreseeably imposing expression-stifling costs, without necessarily giving more concrete guidance as to the cases in which that duty obtains.

56. Of course, the burden for any given team does not itself support any coordinated efforts on the part of teams to ensure that Kaepernick was not signed (I make no claim as to whether this took place). The justification of such conduct at the bar of the duty of expressive toleration would further depend, for instance, on whether Kaepernick's presence in the NFL as a member of any given team imposed league-wide burdens on even the teams that did not sign him, say by damaging overall league revenues by lessening its popularity, and whether, crucially, such burdens are so great so as to render refraining from participation in such collective action unreasonably demanding. As with the individual fan case, then, the duty of expressive toleration is still more likely to condemn coordinated attempts to impose costs—through boycotts, for instance.

57. Again, parallels between this case and unjust reaction qualifications are illuminating. Suppose racial animus in a community makes some would-be employees less successful in customer-facing roles. It may be overdemanding to require a small business to refrain from taking racially offensive reaction qualifications into account when doing so will predictably lead to the collapse of the business (and, suppose, the loss of subsistence income for the business owner). It is consistent to hold that it is permissible for the business owner to take into account racially offensive reaction qualifications and at the same time to hold that this involves an unjust deprivation of equal opportunity, in virtue of injustice pertaining to the reaction qualifications themselves. For the same conclusion about such a case, see Mason, supra note 49, at 67–68.

58. There would still be a question, of course, of whether participating in a collective imposition of cost is unjust for other reasons.

59. A very different, but still illustrative, case is that of the NBA player Jonathan Isaac, who, in something of an inversion of the Kaepernick case, declined to kneel during the playing of the national anthem before a game, in a context where all other players involved in that game, and in all other games since the league had restarted following a hiatus, knelt in symbolic support for the Black Lives Matter movement. See Nick Friedell, Orlando's Jonathan Isaac First in NBA Bubble to Stand During Anthem, ESPN (July 31, 2020), https://www.espn.co.uk/nba/story/_/id/29573762/orlando-jonathan-isaac-first-nba-bubble-stand-anthem. Just as in the Kaepernick case, the duty of expressive toleration commends refraining from imposing costs liable to stifle expression of the kind that Isaac engaged in.

60. Mill, supra note 3, at 278 (my emphasis).

61. Id. at 279.

62. This is close to the conception of shame offered by Klonick in her Re-Shaming, supra note 22, at 1033.

63. See June Price Tangney & Ronda L. Dearing, Shame and Guilt (2002), at 25; see also Martha Nussbaum, Hiding from Humanity: Disgust, Shame, and the Law (2004), at 11.

64. Note that this is different from saying that the judgments originate from factors outside the self. It is also different from saying that there are actual others who render the judgments; the others could be imagined or hypothetical.

65. Nussbaum, supra note 63, at 39–40.

66. Id. at 38.

67. Although the shamed may need to respect, or in some sense care about, the view of the other, against which they feel shame.

68. For an account of objectification and its disaggregated incidents, see Martha Nussbaum, Objectification, 24 Phil. & Pub. Affs. 249 (1995).

69. Jean-Paul Sartre, Being and Nothingness (2003), at 282–283.

70. As Sartre puts it, “[s]hame is shame of oneself before the Other.” Id. at 246; see also Bernard Williams, Shame and Necessity (1993).

71. This is not to deny that it is possible to conceptualize “whiteness” in a way that refers to status, perspective, or behavior. How far invocation of race involves stigmatization rather than criticism will importantly depend on shared understanding of the meaning of “race” in what is expressed.

72. One need only imagine a proudly self-defined Nazi to see this.

73. This is true even when the identity that is targeted by the slur is an abhorrent one. If someone posts a message “all Nazis are scum,” this also transgresses the duty because the Nazi could not critically reflect on their Nazi commitments and countenance sharing the judgment while retaining an undamaged sense of self-worth.

74. Mill, supra note 3, at 259.

75. For a parallel discussion, see Serena Olsaretti, Rescuing Justice and Equality from Libertarianism, 29 Econ. & Phil. 43, 51–53 (2013).

76. David Miller, Constraints on Freedom, 94 Ethics 66 (1983).

77. For related discussion, and similar conclusions, see Jeremy Waldron, Homelessness and the Issue of Freedom, 39 UCLA L. Rev. 295, 315–318 (1991).

78. See Note, The Chilling Effect in Constitutional Law, 68 Colum. L. Rev. 808 (1969).

79. Mill, supra note 3, at 258.

80. Id. at 306.

81. For an account that suggests examples of such a danger, see Weinstein, James, Hate Speech Bans, Democracy, and Political Legitimacy, 32 Const. Comment 527 (2017)Google Scholar.

82. That said, I don't suppose that bringing such claims comes without financial costs, sometimes prohibitive ones.

83. Mill, supra note 3, at 20.

84. Here I have in mind speech that will not in fact receive societal censure but that people erroneously think will receive such censure.