Criminals Think, But Thinking Is Not Criminal

W. B. Allen's keynote at the 2024 Alumni Summit on Free Expression

Free Speech

CRIMINALS THINK, BUT THINKING IS NOT CRIMINAL

W. B. Allen's keynote at the 2024 Alumni Summit on Free Expression

William B. Allen

Editors’ note: We thank Prof. Allen for his generous permission to publish this transcript of a speech he gave at the 2024 Alumni Summit on Free Expression hosted by the American Council of Trustees and Alumni (ACTA) and the Alumni Free Speech Alliance (AFSA), in Washington, D.C.

I have to begin, of course, by acknowledging our host with words of thanks and appreciation. ACTA has served for a long time as the tip of the spear in the work you are concerned with, and they have achieved remarkable results in the process. It is also delightful to see AFSA entering into that line of development and continuing to spread those influences quite significantly.

And there are so many of you here who have been for so long engaged in this process that I'm somewhat reluctant even to open the conversation with you, because though (in addition to being a professor) as I am an ordained minister and accustomed to singing to the choir, nevertheless, one is always a little bit uneasy about not being able to strike the right key. But I will venture ahead with all courage, and undertake a very brief conversation with you, which I hope will be extended through your questions and observations in the process.

My theme today is a simple theme, and it is to be captured in the expression “all criminals think, but thinking is not a crime.” That requires us to reflect most seriously on some of the developments that we confront today. So it is impossible to have this conversation without taking into account the present circumstances that confront us, and yet in doing so, I am mindful how important it is for us to remember how we arrived at this moment.

In addition to reflecting upon what may lie ahead in the face of the chaos that often seems to surround us, we have the further task of reconciling paths of development, which quite easily explain why we are where we are. Or to put it differently, and perhaps somewhat more immediately subject to being grasped, we have come a long way from brown paper wrappers and repressive tolerance. Brown paper wrappers, of course, were commonly used in the forties and fifties for the distribution of pornography. Repressive tolerance, a concept introduced by the famous Herbert Marcuse at the end of that series of decades, turned the world upside down and redefined the very notion of tolerance.

I will remind you that Marcuse himself had been turned away from an invitation to join the faculty at the University of Maryland because of his radicalism and the classical liberals in the academic world of the day jumped to his defense. They didn't save the appointment, but they certainly made a great scene about the unseemliness of refusing to bring diverse ideas into the academy.

But what was ironic about that particular event was the fact that Marcuse himself, of course, had propagated the theory that the tolerance of classical liberals was intolerant, was repressive tolerance, and had to be replaced. In fact, let me just quote these remarks very briefly so that you remember what Marcuse said, and why we are therefore considering this topic today. And I am not going to do this in my own words; I am just going to take it from Wikipedia, though they mainly are quoting him. It reads as follows: “Marcuse argues that ‘the realization of the objective of tolerance’ requires ‘intolerance toward prevailing policies, attitudes, and opinions which are outlawed or suppressed.’ He makes the case for ‘liberating tolerance,’ which would consist of intolerance to right‐wing movements and toleration of left‐wing movements.”

Now, you have to let your mind dwell on that for a moment, and realize that those words from the 1960s quite thoroughly describe the world in which we find ourselves now. Are you, therefore, surprised that we are there? You might say we have tolerated nonsense for so many decades, it is not to be wondered that the nonsense parades itself as the only sense. But of course, to be silent in the face of the nonsense that surrounds us is to invite the curse of darkness, and we know that we can only lift that shadow through discussion, for it is discussion that brings illumination.

The question is, can we ever return to those wonderful precincts of open discussion and increasing enlightenment, which we once treasured as the hallmarks of intellectual inquiry, and the development of a modern academic world?

I want to talk about that in relationship both to what has happened most recently and to what happened a very, very long time ago. We are all familiar, of course, with the present protest. Many of us don't fail to recognize the echoes of the 1960s and how the protests of that era were met, particularly in California by a brand new governor, Ronald Reagan when he came into office. And we often ask ourselves why do we not see the same kind of resolve? Well, we've seen some of it. We saw it of course from Ben Sasse at the University of Florida, and a number of others in a handful of institutions around the country.

Now that underscores an important point, for the repressive tolerance which Marcuse advocated has marched through our institutions, and those which are the most establishment by tradition and by accomplishment and status have become the homes of repressive tolerance. They are the very places that seek now to impose silence. It is, of course, a discriminating silence, not absolute silence, though I will say before we are done that at the end of the day, the silence would be absolute if matters are not radically redirected, and shortly so. But it is a selective or discriminatory silence, because for now, it is meant only to silence those who defend open inquiry. That accounts for the loudness of the protests.

The protests are not meant to bring insight. They are not meant to persuade. Some people, I suppose, form that small core who constantly call these “peaceful” protests despite the outrages that they perpetrate. Some people imagine that this reveals the truth. Now, it is really quite the opposite. The idea is to completely displace any ambition to make the truth prevail, to silence those who would appeal to truth and who would appeal to reason, to silence thinking, to make thinking itself criminal.

Now you may think, all right, Allen, we are accustomed to hyperbole. We know what academics can be like when they get carried away and attempt to take the complicated and render it simple, but surely you are exaggerating. Well, I say I am not exaggerating. I am doing quite the opposite, I'm actually speaking in the most modest of fashions.

Just reflect for the moment how far we have traveled since we first introduced the notion of hate crimes. Now, most people quite supinely accepted that terminology because most people quite decently and reasonably reject hatreds of the manner that we have experienced. And we agreed to discourage hate and punish hate crimes, before we paused to ask what exactly is a hate crime. We know what crime is, we know what criminal conduct is, but what exactly is a hate crime?

If you take any particular illustration (and I invite you to summon forth your own in your imagination), you will immediately realize you are talking about two things at once in a single expression: criminal conduct, which is one thing, and the sentiment that accompanies the conduct, or the thinking that may or may not be present prior to or in the course of the conduct. The hate crime is the thinking itself, not the conduct. It is easy enough to punish the various acts of criminality, from murder to the less exigent, but the thought? The fact that the murder was perpetrated with hatred in mind makes it a different crime than indifferent murder?

Well, we have always had in our legal tradition the concept of murder aforethought. So, we are not surprised that there is some element of thinking taken into account. For in order to hold people responsible, we must say they thought about what they were doing at some fundamental level. But to proceed from that, to say we are going to enhance penalties if the thought was hateful, and therefore, distinguish identical conduct based on the thought that is associated with the conduct is to make the thought itself criminal.

And that was the beginning of a slippery slope, and a long descent into the universe of social control, which we now see expanding all over the Western world, and patterned, of course, in China. The idea of punishing thought or making thought criminal is the essential foundation of social control. It was what lay at the bottom of the Cultural Revolution, and it is what now inspires all the efforts to reshape the society in which we live.

So I have introduced the topic of freedom of inquiry, but let us speak more broadly, not with a reflection on the universities initially, but to remind us that we are talking about the entire cultural experience that we now know. The universities are at the forefront of our minds, because they are the situs from which this new dynamic has emerged most powerfully, and it has spread from them into all of the flagship cultural institutions of the society. There is a disposition present in the leadership of those flagship cultural institutions to police thinking, and to criminalize unacceptable thought.

To go way back some 300 years, I want to remind you of something. This is something written by Montesquieu whose work The Spirit of the Laws I have recently issued in a new translation from Anthem Press. I want to share with you just a few passages from book 12 of The Spirit of the Laws, and Book 12 is titled, “On Laws that Constitute Political Liberty in its Relation to the Citizen.” That title is directly related to the title of the preceding book, Book 11, “On the Laws that Form Political Liberty in Its Relation with the Constitution.” And so Montesquieu distinguished formal liberty, liberty that is provided through institutional constitutional arrangements, and the immediate experience of liberty by individuals, by citizens.

So Book 12 is about the citizen's perspective and he gives us a two‐part definition: Liberty of the citizen consists in the opinion the citizen has of his safety. That’s the first part. Second part: Liberty consists in the opinion that the citizen has, that he acts by his own will, or consciousness. And it takes those two things to create individual liberty in this account.

Now, in the process of elaborating this theory, Montesquieu made several observations which are pertinent to our experience today. The first is that when the citizen's innocence is not protected, neither is liberty. I underscore: when the citizen's innocence is not protected, neither is liberty. You will recognize in that of course from our legal tradition, the presumption of innocence. So to protect innocence is to begin with its assumption, and therefore, to require evidence for conviction, for proof. And that proof has to be by more than a single witness, for example, and it cannot be by imputation.

Here is what I want to share with you, when he speaks of these particular questions. Montesquieu says that when we're talking about various kinds of crimes, we encounter what seem to be crimes of opinion, crimes of thought. For example, religious sacrilege. And so he is scrupulous. He says, you cannot punish religious errors except through religious sanctions, that is, separate it from the civil sanction. How do you punish someone who is blasphemous? Separate them from the faith, deny them the rewards of the faith. There must be a direct relationship, so that is clear.

He also says, it is impossible for human law to avenge an infinite being, because that would mean human vengeance would have to have an infinite extent; there would be no end to the extent of repression. He further makes the observation that you cannot indeed— well, I'll read the passage for you itself: “The absurd accusation ought indeed cause one to doubt all those which are fixed on public hatred.” So if you allow concepts of hatred to determine the basis of accusation, you will in fact license every form of calumny, you will license every attempt to silence those who speak.

Then he goes on in the course of this book continually to make the observation that you must separate the criminal act from the thought. Well, why is that? I'll ask you a simple question. I ask you to ask yourself this question. Have you never had a criminal thought? I suspect there isn't a single one of us who hasn't at some point in the course of life imagined in some fashion, some kind of criminality even without expressly thinking it criminal.

But we have probably even gone beyond that. We have probably played fictive or imaginative games about how to perform a bank robbery, or if I take Jimmy Carter as my illustration, we may have lusted in our hearts. It is really quite inconceivable for human beings to live without passing through their minds an extraordinary diversity of thoughts, some of which might easily and readily be denominated as illicit. But does that mean criminal and punishable?

Well, the gravamen of the argument in The Spirit of the Laws is “no”. And the reason I go back to that argument from 300 years ago is because it allows us to address our present discussion on terms that have nothing to do with our present anxieties. And that is extremely important, being able to separate ourselves from our present anxieties in order to touch the fundamental principles that are at stake.

So let us quickly come to terms with our present anxieties. We see the world around us falling apart, to state it as simply as I may. I am thinking about Heather Mac Donald, who just in the last couple of days wrote the following statement (and it may sound tendentious to some, but I think it speaks importantly to our concerns, so I want to share it with you). I quote:

Biden received plaudits for his Days of Remembrance speech last week. But the performance was an exercise in hypocrisy. Campus anti-Semitism is the outgrowth of fundamental academic and Democratic commitments [That's Democratic with a capital D]. Universities will not cure themselves unless they revamp their curricula and hire traditional scholars, rather than robotic practitioners of critical theory and activist wannabes. The ‘anti-Semitism training’ that administrators are proposing in the hope of extinguishing donor rebellions is a diversionary tactic. One can’t train one’s way out of a worldview that is baked into academic personnel and the courses they teach, even if adding to the diversity, equity and inclusion portfolio were not a patently counterproductive idea.

As long as the Democratic Party and its presidential standard-bearer remain committed to the narrative of white privilege and racial inequity, hatred of Israel and rationalisations for terrorism will be reliable products of the American left. No presidential speech will change that fact.

Now we say, okay, that's a political rendering or at least may be taken by some to be so, but how does that in any way predetermine our course of development in the years going forward? Are we not free to say yes or no to these proffers? Are we not still subject to open discourse, open inquiry?

Well, that may be a question of interpretation. I will give you an illustration, again, departing from my own experience, which makes it easier in a way to think about our experience. There is pending legislation in Canada, a proposed bill C‐63, which Matt Taibbi and Walter Kirn have been waxing eloquent about recently, and others have paid close attention to. And what that legislation does is nothing less than horrifying, not just according to Taibbi and Kirn, but the reports from Canada itself. It is legislation to police communications in the country at large, the entire society, presented under the guise of protecting children from, of course, the wonders (or scourge) of modern technology, but extending so far as to create an entire regime of social control in which individuals are incentivized to inform on improper thinking, which is subject to administrative review, and the imposition of penalties.

What is the incentive? Well, the informer stands to earn $20,000 upon a conviction by an administrative judge, not through a normal legal proceeding. And that $20,000 will come as a portion of the $50,000 fine to be assessed on the criminal thinker. Moreover, that person then becomes subject to constant surveillance and perhaps restricted in movements to either remain in the residence, save for the time going to work and coming back, and otherwise constantly under review. That is pending legislation introduced by the Prime Minister in Canada. Some say it has a high likelihood of passing, one can't be sure about that. But what is the point?

The point is that it reflects a trend wide throughout the West, not merely a present‐day Canadian nightmare. Why is it these things are advancing in those directions there, and at the same time, seem so much to be in play as prospect here? It goes back to the theory that I spoke of in opening, Herbert Marcuse's “Repressive Tolerance,” which is predicated on reordering civil discourse by excluding what is called impermissible discourse. How do we discover what is impermissible discourse? Whatever is contrary to, or what makes uncomfortable the so‐called marginalized, the oppressed. This is a constant theme throughout the West fueling all of these developments that we are witnessing. Remember that Marcuse’s most famous disciple is Angela Davis, the arc of whose activities and influence stretch from the Black Panthers (thought enforcers of the Black Power Movement) through BAMN (By Any Means Necessary) through BLM (Black Lives Matter) to the pro‐Hamas advocates of today!

Now, when I put it in that context (and here I am going to conclude), what I am doing is suggesting that, as we talk about the academy, free speech, freedom of inquiry and science, we must not neglect that that is not what the people who are challenging those verities are talking about. Those are not their concerns. Their concern is to accomplish a political reformation. And they have enlisted brown shirts, storm troopers, to carry out this mission. They seek to impose the silence, which as I said, brings the curse of darkness.

One can, therefore, respond to them, first of all, by insisting on sustaining the conversation in the face of all resistance; and by insisting on maintaining the norms of civil decency. What are the norms of civil decency? Well, the best way for me to convey that to you is to share an experience I had a very, very long time ago. I was invited by a group of women in Hollywood (Los Angeles, Hollywood) to speak on the question of pornography. This was many decades ago now, and this was an audience of Republican women; it was a Republican women's club in that region, and so it consisted of women of means, some blue haired—some not yet blue haired—all of them very polite, very well‐dressed, and yet wanting to talk about pornography. And I agreed, of course, because when you are a young gunslinger, you agree to anything.

And so I presented myself before them, but I had this question in mind: why do they want to talk about pornography? And so the more I thought about it, the more I thought, well, there's only one way to handle this particular question. So I stood before this audience (and there was not a single man in the audience; there were one or two young women there, but they were otherwise middle‐aged and older), and I took the time very carefully, word by word, metaphorically, to “undress” before them. I put them to the test, in order to make clear that the whole problem of what it means to make the private public must be understood in that light, and the discussion of pornography from the point of view of its effect on children or whether it debases the public discourse was secondary to the question of what does it mean for a thing to be out of place? To make the private public? Well, it is the very notion of the obscene. And so, if they are going to take it seriously, then they would have to take seriously the question of whether standards that prohibit obscenity ought to be enforceable.

Now, when I say that, then, I bring us back to where we are today. We cannot respond to the protests, the anti‐Semitism (which Leo Strauss always used to call a polite term for Jew hatred), or we cannot respond even to the violences as specific problems. We have to see them in the broader context of the challenge they pose. What is it they are doing within the public space? How are they trying to reshape our common experience? They say they are defending the idea of a diverse community, which is, of course, an oxymoronic expression. You can have diverse communities, but you cannot have a diverse community since a community is by definition a unity. What they say, therefore belies what they are actually doing.

What we say must not belie what we're actually doing. If we say we want to defend free speech, that is well and that is good, but it is insufficient for we easily enough can discern how others can creep under the banner of free speech to pretend that what assaults free speech but seeks to impose silence can go by the name of free speech. So we do not mean by free speech indiscriminate, unlicensed expression in the public space. We can only mean that one has complete immunity first of all, in one's thinking—it cannot be criminalized. But secondarily, one must accept responsibility for one's expressions, where, when, and how.

Thinking that slides into conduct ceases to be speech simply, free or otherwise, and is governable. We can't allow the idea that there is no governing of speech to license those who would use that very notion to silence all speaking. It is governable. University administrators can govern the forms of speech in their precincts. They can disallow what is out of season, or out of place. All of the norms of decency and civilization require us to make such discriminating judgments. Hence, the ultimate defense of freedom of inquiry, freedom of expression, must repose in recognition that civilization itself depends upon discriminating judgments.

---

William B. Allen is an emeritus professor of political philosophy and former dean of James Madison College at Michigan State University. Throughout his distinguished career, Prof. Allen has held several key positions, including Chairman of the United States Commission on Civil Rights and Executive Director of the State Council of Higher Education in Virginia. He has also served as a resident scholar and Chief Operating Officer at the Center for Urban Renewal and Education in Washington, D.C., and currently chairs the Harford County Public Library Board of Trustees.

Prof. Allen's scholarly contributions are extensive, with numerous books and essays to his credit. His notable works include George Washington: America's First Progressive (2008); Rethinking Uncle Tom: The Political Philosophy of H. B. Stowe (2009); and George Washington: A Collection (1988), which he edited. He is also the General Editor of The State of Black America: Progress, Pitfalls, and the Promise of the Republic (2022) and has recently published Montesquieu's The Spirit of the Laws: A Critical Edition (2024).

Recognized for his excellence in liberal education, Prof. Allen was listed on the 1997 Templeton Honor Roll and received the 2014 Salvatori Prize. He is a 2024 Bradley Prize laureate.