What Free Speech Is and Isn’t: A discussion with Judge Kyle Duncan and Professor Robert P. George

Ethan Hicks, '26
Princetonians for Free Speech

On Tuesday, March 19, 2024, Princetonians for Free Speech and the James Madison Program welcomed Kyle Duncan, Judge on the United States Court of Appeals for the Fifth Circuit, along with Professor Robert George, McCormick Professor of Jurisprudence and Director of the James Madison Program, for a discussion on "What Free Speech Is — And What It Isn't."

After a brief introduction by current PFS Marketing Manager Matthew Wilson, both men sat down for a casual talk addressed to the twenty Princeton students and fifty community members in the audience at Bowen Hall. George began the event remarking that these days some “people say speech is or can be violence and violence is or can be speech. To me, speech is speech; violence is violence; however much one may think it's justified.”

After expressing his gratitude to be at Princeton, Judge Duncan delved into the complicated perceptions that many young Americans have about free speech. Duncan shared that the new generation has well-formed ideas about speech. According to Duncan, some believe that speaking a challenging word can be so harmful that it can be equated with violence. He claimed that the net result of this is to “suppress speech.”

Duncan did not want to discount the thoughts of the rising generation, but he expressed that his views on free speech are more in line with the Supreme Court’s jurisprudence. He demonstrated how free speech is core to American ideals despite its offensive nature by citing Brandenburg v. Ohio. It held that a government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Professor George provided historical context to the conversation before it shifted to other free speech cases such as Snyder v. Phelps. Duncan claimed that “Offensive speech is protected by the First Amendment. We have arrived at a consensus that we protect offensive and racist speech. We protect that speech not because we like it, but because we would sacrifice other freedoms if we did not protect that speech.” Duncan argued that counter speech is the solution to hateful speech, not punishment. George added that “Under American jurisprudence, there is no exception to our free speech principles for hate speech.”

The conversation then shifted to a discussion of jurisprudence on free speech in America, reaching broad topics such as group libel under Beauharnais v. Illinois and the right to protest established by National Socialist Party of America v. Village of Skokie. Both men later discussed how giving the government the power to criminalize hate speech would present challenges because it would be difficult and subjective to identify. While it was clear that both men strongly support free speech, they acknowledged the success of European democracies who criminalize hate speech.

George then offered a survey of the legal history of free speech in the United States. Duncan claimed that the jurisprudence of free speech is not driven by originalism. “By and large, the justices are applying precedent that represent underlying thoughts about free speech.” Nothing is to say that those ideas will continue to hold sway. Currents of thought can change.

George then introduced the debate between legal formalism, the notion that the law should be the same for everyone regardless of race or class, and critical race theory, the notion that citizens should not be given equal rights because this produces inequitable outcomes. George claimed this argument must be addressed. He then asked Duncan the question: Should judges account for the race, ethnicity, SES status when ruling on cases?

Judge Duncan responded: “From my perspective, that goes against my notions of equality.” Asking a judge to apply equity as opposed to equality is a challenging ask. Duncan emphasized that he follows the safety valve theory of free speech. “If you tell people they cannot speak, they cannot get out their fair say, and they get angry. This pressure builds and someday they’ll explode.”

George then turned the conversation to free speech at universities. He claimed that free speech was once cherished but that we have now reached a point where free speech is considered to be a problem by some. Duncan said that as a father, he does not want to shield his children from being challenged, but he does not want them to be indoctrinated. “The whole purpose of the university is to teach students to think critically about the big issues, and you cannot do that in an atmosphere where you think your speech will be censored.” He wants physical safety for his children but not ideological safety.

George and Duncan then highlighted how conservative and liberal justices have shifted their position on free speech depending on their political beliefs. George highlighted that while modern conservatives are typically strong advocates of free speech, they strongly disagreed with the remarks made by the former President of Harvard, Claudine Gay, and other elite university presidents in a congressional hearing on antisemitism. George claimed that given the Chicago Principles adopted by these universities, the answers the presidents provided mirrored their legal responsibility. Duncan claimed that a new speech code that protects certain groups is not the solution, but freer speech is.

After about an hour of dialogue, Judge Duncan and Professor George opened the floor to questions including public versus private speech and whether the government should censor misinformation. The full recording of the event can be found here.

Ethan Hicks is a member of that Class of 2026 in the economics department.