David Van Mill "Free Speech"

1. Introduction: Boundaries of the Debate

The Balance Between Liberty and Authority

No society has yet existed where speech has not been interfered with to some extent. As JohnStuart Mill argued in On Liberty, a struggle always takes place between the competing demands of liberty and authority, and we cannot have the latter without the former:

"All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed -- by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. (1978, 5)"

Slippery Slope Arguments

Before we do this, however, the reader might wish to disagree with the claims made above and warn of the dangers of the “slippery slope.” The slippery slopeargument is that we should not limit free speech because once we do we will slide our way into tyranny and censorship. Such arguments assume that we can be on or off the slope. In fact, no such choice exists: we are necessarily on the slope whether we like it or not, and the task is always to decide how far up or down we choose to go, not whether we should step off altogether. It is worth noting that the slippery slope argument can be used to make the opposite point; one could argue with equal force that we should never allow any removal of government involvement with the action of individuals because once we do we are on the slippery slope to anarchy, the state of nature, and a life that Hobbes described in Leviathan as “solitary, poore, nasty, brutish, and short” (1968, 186).

From Rockell v. Morris (quoted in Village of Skokie v. National Socialist Party)

A community need not wait to be subverted by street riots and storm troopers; but, also, it cannot by its policemen or commisioners, suppress a speaker, in prior restraint, on the basis of news reports, hysteria, or inference that what he did yesterday, he will do today. Thus, too, if the speaker incites others to immediate unlawful action he may be punished--in a proper case, stopped when disorder actually impends; but this is not to be confused with unlawful action from others who seek unlawfully to suppress or punish the speaker.

So, the unpopularity of views, their shocking quality, their obnoxiusness, and even their alarming impact is not enough. Otherwise, the preacher of any strange doctrine could be stopped; the anti-racist himself could be suppressed, if he undertakes to speak in 'restricted' areas; and one who asks that public schools be open in discriminately to all ehtnic groups could be lawfully suppressed, if only he choose to speak where persuasion is needed most...

-this last point is one to consider in turning to Keegstra.

If you believe that the government might abuse freedom of expression, and perhaps even turn it against the anti-racist, why do you believe this?

Is the reason that censorship puts us on a philosophical slippery slope (we can't give good reasons for drawing the line where we want to once we start censoring
some kinds of speech)?

Is the reason that, practically speaking, this power would be too easy for the government to abuse? Call this a practical slippery slope.

Are we really free to say what we like?

The second thing to note is that we are in fact free to speak as we like. Hence, free speech differs from some other forms of freedom of action. If the government wishes to stop citizens performing certain actions, riding motor bikes for example, it can limit the freedom to do so by making sure that such vehicles are no longer available; current bikes could be destroyed and a ban can be placed on imports. Freedom of speech is a different case. A government cannot make it impossible to say certain things. The only thing it can do is punish people after they have said, written or published. This means that we are free to speak or write in a way that we are not free to ride outlawed motorbikes. This is an important point; if we insist that legal prohibitions remove freedom then we have to hold the incoherent position that a person was unfree in the performance of an action. The government would have to remove our vocal chords for us to be unfree to speak in the same way as
those who want to ride motorbikes are unfree.

2. The Harm Principle and Free Speech

2.1 John Stuart Mill's Harm Principle

-clarifying the harm principle.

If we accept the argument based on the harm principle we need to ask “what types of speech, if any, cause harm?” Once we can answer this question, we have found the correct limits to free expression. Mill uses the example of speech related to corn dealers; he suggests that it is fine to claim that corn dealers are starvers of the poor if such a view is expressed through the medium of the printed page, but that it is not permissible to express the same view to an angry mob, ready to explode, that has gathered outside the house of the dealer. The difference between the two is that the latter is an expression “such as to constitute...a positive instigation to some mischievous act,” (1978, 53), namely, to place the rights, and possibly the life, of the corn dealer in danger. As Daniel Jacobson (2000) notes, it is important to remember that Mill will not sanction limits to free speech simply because someone is harmed by the statements of others. For example, the corn dealer may suffer severe financial hardship if he is accused of starving the poor. Mill distinguishes between legitimate and illegitimate harm, and it is only when speech
causes a direct and clear violation of rights that it can be limited. Other examples where the harm principle may apply include libel laws, blackmail, advertising blatant untruths about commercial products, advertising dangerous products to children (e.g. cigarettes), and securing truth in contracts. In most of these cases, it is possible to make an argument that harm has been committed and that rights have been violated.

2.3 Mill's Harm Principle and Hate Speech

Village of Skokie v. National Socialist Party

facts

-the National Socialist Party claimed that its protest concerned the Park District's demand that the party procure a substantial amount of insurance before being able
to use local public parks for their gatherings.

-furthermore, while Nazi emblems were to be displayed, they promised to restrict themselves to peaceful protest, concerned with their right to freedom of speech
("Free Speech for the White Man").

-not everyone accepted this account; one Jewish resident of Skokie testified that the real message of the protest was to remind survivors of the Holocaust "that we
are not through with you".

The Village of Skokie attempted to gain an "emergency injunction" against the protest. Ultimately, this attempt was rejected by the Supreme Court of Illinois.

Village of Skokie's argument:

The protest, and in particular the display of the swastika, could be considered an exception to freedom of expression under the "fighting words doctrine" found in
Chaplinsky v. New Hamphsire and Cohen v. California.

Chaplinsky:

"no words being forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed."

Cohen:

"those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent
reaction,"

The Court's Response:

-an initial appeal to some Millian sounding ideas about the effects of freedom of expression.

-fighting words does not apply where the means of expression are themselves peaceful (though the content of the expression may not be), and accompanied by due
notice.

-concerns about the risks of opening the door to the censorship of words and emblems. Doing so gives the government an opportunity to abuse this power. Quoting
from Rockwell v. Morris, "the preacher of any strange doctrine could be stopped; the anti-racist himself could be suppressed, if he undertakes to speak in restricted
areas..."

Kateb's Argument

There are two basic responses to the harm principle as a means of limiting speech. One is that it is too narrow; the other is that it is too broad. This latter view is not often expressed because, as already noted, most people think that free speech should be limited if it does cause harm. George Kateb (1996), however, has made an interesting argument that runs as follows. If we want to limit speech because of harm then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because it is aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries. Even worse than political discourse, according to Kateb, is religious speech; he claims that a lot of religious speech is hateful, useless, dishonest, and ferments war, bigotry and fundamentalism. It also creates bad self-image and feelings of guilt
that can haunt persons throughout their lives. Pornography or hate speech, he claims, causes nowhere near as much harm as political and religious speech. His conclusion is that the harm principle casts its net too far and we should allow almost unlimited speech.

This is a powerful argument, but there seem to be at least two problems with the analysis. The first is that the harm principle would actually allow religious and political speech for the same reasons that it allows pornography and hate speech, namely that it is not possible to demonstrate that such speech does cause direct harm to rights. I find it very doubtful that Mill would support using his arguments about harm to ban political and religious speech. The second problem for Kateb is that if we accept he is right that such speech does cause harm in the sense of violating rights, the correct response is surely to start limiting political and religious speech. If Kateb's argument is sound he has shown that harm is more extensive than we might have thought; he has not demonstrated that the harm principle is invalid.

3. The Offense Principle and Free Speech

3.1 Joel Feinberg's Offense Principle

The other response to the harm principle is that it does not stretch far enough. One of the most impressive arguments for this position comes from Joel Feinberg, who suggests that the harm principle cannot shoulder all of the work necessary for a principle that has to deal with free speech. In some instances we also need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we should prohibit some forms of expression because they are very offensive. Causing offense is less serious than harming someone, so the penalties imposed should not be as heavy as those for actions that cause harm. As Feinberg notes, however, this has not always been the case and he cites a number of instances in the U.S. where penalties for sodomy and consensual incest have ranged from twenty years imprisonment to the death penalty. These are victimless crimes and hence the punishment has to have a basis in the supposed offensiveness of the behavior rather than the harm that is caused.

-the difficulties of interpreting and enforcing the offense principle.

3.3 Hate Speech and the Offense Principle

-Feinberg on Skokie (marginal value of the speech in question, deep offensiveness of speech, potential fighting words).

4. Democracy and Free Speech

-rejecting simplistic and unreflective appeals to the First Amendment.

-what follows from our commitment to equality?

The task is not to come up with a principle that always favors expression, but rather, to decide what is good speech and what is bad speech. A good policy "will notassume that the only relevant sphere of action is the head and larynx of the individual speaker" (1994, 126). Is it more in keeping with the values of a democratic society, in which every person is deemed equal, to allow or prohibit speech that singles out specific individuals and groups as less than equal? The answer, according to Fish, cannot be settled by simply appealing to a pre-ordained ideal of absolute free speech, because this is a principle that is itself in need of defense. Fish's answer is that, "it depends.

4.3 Paternalistic Justification for Limiting Speech

Although Stanley Fish takes some of the mystique away from the value of speech, he still thinks of limitations largely in terms of other regarding consequences. There are arguments, however, that suggest speech can be limited to prevent harm being done to the speaker. The argument here is that the agent might not have a full grasp of the consequences of the action involved (whether it be speech or some other form of behavior) and hence can be prevented from engaging in the act. Arguments used in the Skokie case would fit into this category. Most liberals are wary of such arguments because we are now entering the realm of paternalistic intervention where it is assumed that the state knows better than the individual what is in his or her best interests.

Thomas Scanlon's Anti-Paternalistic Argument

Assumption: "the powers of the state are limited to those that citizens could recognize while regarding themselves as equal, autonomous, rational agents."

Definition of autonomy: [a weak conception] "a person must see himself as sovereign in deciding what to believe and in weighing competing reasons for action."

Other persons (including the state) don't violate weak autonomy by trying to coerce you into obeying their wishes or laws.

Example: smoking pot.

By sanctioning pot smoking with a five year prison term the government doesn't violate weak autonomy. It just introduces another factor that one must take into
consideration

The matter is different if the government censors opinions on pot smoking. Punishment merely introduces a factor that one must take into consideration. Censorship blinds us to things that we might otherwise take into consideration.

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5. Back to the Harm Principle

Similarly, he states that “The liberty of the individual must be thus far limited; he must not make himself a nuisance” (1978, 53). In the latter parts of On Liberty Mill also suggests that distasteful characters can be held in contempt, that we can avoid such persons (as long as we do not parade it), that we can warn others against the person, and that we can persuade, cajole and remonstrate with those we deem offensive. These actions are legitimate as the free expression of those who happen to be offended as long as they are done as a spontaneous response to the person's faults and not as a form of punishment.

But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and are other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice,envy or resentment necessarily violates the rights of others. The only way that Mill can make such claims is by expanding his argument to include an offense principle and hence by giving up on the harm principle as the only legitimate grounds for interference with behavior. Overall, Mill's arguments about ostracism and disapprobation seem to provide little protection for the individual who may have spoken in a non-harmful manner but who has nevertheless offended the sensibilities of the masses.

Is Van Mill correct about this?

Discussion Question:

Are the lyrics to "Cop Killer" morally comparable to the Nazi "protest" in Skokie? Are they "fighting words"?