Wes, Mark, Dylan, and Seth have a free-form discussion on contemporary issues regarding potential restrictions on speech, drawing on Stanley Fish’s “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too” (1994) and Joel Feinberg’s “Limits to the Free Expression of Opinion” (1975), and also on David van Mill’s Stanford Encyclopedia of Philosophy article, “Freedom of Speech,” John Milton’s Areopagitica (1644), and J.S. Mill’s On Liberty per our ep. 183.
What are the legitimate limits on free speech? Mill argues that speech can be legally limited and/or socially censured when it’s harmful, but what does that mean? Philosopher of law Feinberg gives several categories of speech that can be regulated and discusses the difficulties in applying each category: defamation (including “malicious truth”), invasions of privacy, causing panic, actions expected to provoke retaliatory violence (“fighting words”), and incitement to crime. He does not consider “sedition” legitimate to prohibit (Mill and Spinoza did). However, he does consider (in “Offensive Nuisances,” a chapter from a different book that some of us read part of, The Moral Limits of the Criminal Law, Offense to Others, from 1985) that there are some actions that are not overtly harmful but that, just through their being offensive according to community standards (such as sex acts in public), can be legitimately prohibited.
The Stanford article begins by arguing that free speech isn’t an end it itself; we don’t just want to hear people talk. We value unrestricted speech for some particular reasons. For instance, Mill and Milton argue that we need it to make sure that politically and even psychologically we don’t stagnate. Ideas need to be regularly challenged both to make the wisest possible decisions in what to believe (having all ideas on the table and vigorously defended by someone) and in gaining a better understanding of our ideas through having to defend them against all comers. However, that means that when some particular speech act is detrimental to those goals, it’s a candidate for censure. Given the history of discrimination in the USA, does it help us to have vigorous debates going on now about whether racial minorities are inferior to whites? Or does the crankish insistence of racists just demoralize us and make deliberative conversation as a practical matter more difficult?
Stanley Fish argues that all claims of “free speech” have within them an underlying commitment to some ideology that really favors some kinds of speech over others. As a Milton scholar, he discusses the Areopagitica, which is an argument against having a central government censor who would review all books before publication, as not inconsistent when Milton clarifies that of course he doesn’t mean that Catholic doctrines should be freely expressed. Milton is arguing for open deliberation, and “popery,” as he calls it, requires us to not deliberate for ourselves, but to submit in all our judgments to the infallible pope. To modernize and generalize this, the point is that free speech is based on liberal values, and so allowing attacks on the institution that allows for this freedom is self-defeating. (Karl Popper called this the “paradox of tolerance.”)
Wes argues that no, we have to bite the bullet: A liberal society is not one that discourages anti-liberal speech, but one with liberal institutions that allow for all nonharmful speech, and that the standard for harm should be narrowly interpreted as applying only to tangible harms of particular people and clear and present danger.
Most hate speech, on this view, should be legally permissible, and certainly any writing should be. If something is merely offensive, then per Feinberg, it should be allowed if it’s reasonably easy to turn away from it. Simply don’t read that book, or don’t go to that rally.
Things become more difficult when we move from legal matters to what organizational policies such as those of campuses or newspapers should or shouldn’t prohibit; this is the question of venue. According to Wes, private organizations, unlike the state, can set whatever kinds of rules they want to create their desired speech climate. But clearly permissibility is not the same as advisability, and so while campuses and businesses are allowed to crack down on speech, this does cause the same kinds of harms about open deliberation that Mill is worried about, and if all news outlets and venues end up rejecting some idea as too unpalatable to be allowed expression, then wouldn’t that idea be marginalized to such an extent that it doesn’t fulfill its function (according to Mill) of being there to help us toughen ourselves in having to confront it?
Fish describes any institution as having an underlying mission, and (according to Mark) this is not necessarily something that can be simply spelled out in its bylaws, but requires interrogation by its members: What are we really trying to do here? This provides a grounds for a college or other institution to grapple with particular cases. Does allowing a Nazi group to meet on campus, for instance, help or hinder this cause? Does the prohibition cause more trouble than simply allowing the occurrence to happen? Fish doesn’t believe that simply claiming “free speech” should stop all conversation about what’s actually appropriate. As an anti-foundationalist, he believes that rights such as speech are achievements of political struggle, not God-given, transcendent entities, and so a claim to have a right to some speech is a move in a game that is inescapably political. In every context, there are built-in restrictions on what counts as a “legal move” (think Wittgenstein’s language games), so that if you’re ordering a pizza, there are only certain utterances that will even make sense to the person on the other end of the phone. In an academic setting, students are expected to sit quietly until question and answer time comes, and/or to raise their hands; the rules may be different or more or less enforced in different classes, but clearly if you just start yelling so that no one can hear anything else and don’t stop, then you’re over the line. So there’s always a line, always some restriction, and where that line is is set according to the politics of those in power, and if you want to argue about moving the line, then you’re making a political move as well. Neither side has recourse to a transcendent ideal of “free speech” to set the line in one particular place; using the term is just a (often highly successful!) rhetorical device.
The same sort of interrogation of our underlying purposes and how we’ve set lines in the past, of course, should apply to whole societies, and in this way Fish’s argument is similar to a historical one based on the social contract. Have we, in being part of society, agreed implicitly not to advocate for its destruction (sedition), not to seek to delegitimize the political participation of some group of our fellow citizens (arguably what hate speech does), or not to break common norms of decency (obscenity laws)? How particular cases are interpreted is not a matter of objective application of the principle of free speech and its related harm principle, but are matters of politics. Fish does not think that this taint of the “political” makes all arguments equally forceful (relativism) or devalues the sort of critical thinking that Feinberg is engaged in, but it does take the wind out of the sails of free-speech absolutists who think that we have to allow the expression of ideas like Holocaust denial and white supremacy. These should be matters of case-by-case deliberation, looking at the actual harms that allowing these practices are likely to bring or not bring, and reflecting on what kind of speech climate best aligns with human flourishing.
Buy Fish’s book or read a shortened version of the article online. Read the Feinberg article on the harm principle online, or buy his books from the Moral Limits of the Criminal Law series, Harm to Others and Offense to Others. Read Milton’s “Aeropagitica” online or buy it.
Continues with part two. Get the full, unbroken Citizen Edition. Please support PEL! We’ll also be soon releasing a full-length follow-up discussion to this one between Mark and Wes, just for supporters.
Image by Solomon Grundy.