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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.
Ben Robin says
On the point about empirically testing whether suppression of speech leads to greater circulation of negative or untrue claims or not, the UK vs rest of Europe comparison might be instructive. UK has (until recently at least) had a more liberal attitude, Holocaust denial isn’t a crime, and recent Brexit referendum allowed a deep seated cultural and political divide to be publicly aired. The closest thing the UK has to a far right political movement (UKIP) has all but disappeared in the UK, the liberal centre is holding much stronger competitive with other European states and is only really challenged by the leftist populism of the Corbyn movement which is currently mired in an antisemitism scandal.
Michael Kurak says
If free speech is simply a particular aspect of freedom more generally then it arguably does have an in itself value. I am surprised that “What is Enlightenment?” did not make it to the reading list.
The key mystery, in my mind, concerns the question of how antagonistic views (from multiple perspectives) lead to truth. Haidt, Petersen, and Pinker, all of whom are psychologists, and at least some of whom have argued that feeling is the basis of moral judgment, appear to have recently undergone a conversion, and now espouse the authority of reason. But from whence does this authority arise? I have yet to hear a satisfactory explanation. Kant hints at self-organization and I, for one, think that he is right. But this is not something to which the psychologist, who is a mechanist by discipline, has recourse. So how did these conversions come about? And how do these guys think this “averaging” is going to work?
Alan Thomas says
Very interesting. So far, like Wes, I’m still squarely with Mill.
I haven’t heard the second part yet, so my feedback here is necessarily preliminary. But I really hope you will get into the SCOTUS case on “rap lyrics”. That is such a thorny one, since we all know that guy was trying to terrorize his wife, yet we have to be careful not to go down a slippery slope of suppressing artistic expression.
Wes, I agree with you that the campus newspaper obviously could just refuse the advertorial. But I think it would have been more interesting to explore the question of what kind of advertising a TV or radio station can refuse. Unlike a newspaper, they cannot just refuse ads from a major party candidate they oppose. But broadcast TV and radio is becoming less and less relevant; so what does it mean if your news/opinion site traffic is on the Internet that everyone uses? Is it still over a medium equivalent to the public airwaves, or is it like a newspaper?
August Denys says
I don’t normally come here after listening to an episode, for instance this is my first time writing a comment on this website; however, I feel that I must confront the last point stated in this episode. I don’t know who made it because I only associate the ideas to the voices, and I don’t associate the voices to any names. Your voices are distinct enough where I can do this.
So, the last point made was that the suppression in some European countries was not beneficial and could have perhaps caused the hate speech to fester and grow unexamined. This lead to the point that I must disagree with: it was stated that we should gracious and pit view against view; however, this examines the problem in a way which believes the viewpoints can be settled logically. The problem with this view, and I know you are trying to be gracious in the interpretation of your opponent, is that it believes the other, the one causing/saying the hate speech is using logic. Rather it becomes problematic when you consider the opponent, the hate speech person, is using rhetorical devices instead of logical devices. Furthermore, this viewpoint against viewpoint analysis of the problems is in itself problematic because it demonstrates a belief that the only ones involved are the two opposing viewpoints. This isn’t the case especially on the internet, and this compounds with the use of rhetorical devices instead of logic. Why? Because the goal of the hate speech person is not to be correct; rather, they are trying to win. If they look like they are winning, then other people who examine the exchange will look at the person who is winning and choose their side. However, this is not my original idea; rather, it comes from the YouTube Video Essayist Innuendo Studios and his continuing series “The Alt-Right Playbook.”
Furthermore, this concern of mine stems from my reading of Gilles Deleuze (yes he is labeled as a Postmodernist, but if you his books they are brilliant). In his work “Nietzsche and Philosophy” Deleuze claims that all philosophy hitherto has not had a concept of truth in itself. This goes along with Deleuze’s critique that the classical image of thought (I take the idea of image as being shared with Bergson’s use of the term from his work “Introduction to Metaphysics”) equated thought to truth. This can be seen in Descartes, Plato, Aristotle, and the Empiricists (this feels like a weird order, but it’s my order) where they equated truth with thought matching matter of fact. However, this view robs truth of its own conceptualization. Therefore, Deleuze states that we need to give truth a concept, and this concept has two parts Sense and Value. (Cf. Nietzsche and Philosophy pg. 107) Why do I bring this up? (Well one is to make you do another episode on Deleuze) Because the problem that I have seen philosophically from the last argument in this episode is that Mill and these other thinkers believe that this ability to think is connected to directly to this non-conceptualized truth that leads to the case of Liberalism and free speech in which truth is victor over error. However, Deleuze goes further because the Opponent, the hate speech person, we consider them to be in error, to be stupid, but this is not opposed to thought, this is merely a structure of thought itself.
“Stupidity is a structure of thought as such: it is not a means of self-deception, it expresses the non-sense in thought by right.
Stupidity is not error or a tissue of errors. There are imbecile thoughts, imbecile discourses, that are made up entirely of truths; but these truths are base, they are those of a base, heavy and leaden soul… In truth, as in error, stupid thought only discovers the most base – base errors and base truths that translate the triumph of the slave, the reign of petty values or the power of an established order.” (Nietzsche and Philosophy pg. 105)
So, I don’t normally comment or come here, but the assumptions being made at the end of the video forced me to come and examine them.
Evan Hadkins says
I’m in the same situation as Seth I think.
This is the reason. I think people allowed climate change denialists to have their say in the faith that ‘the truth will prevail’. It seems to me that this gave the impression, to those who weren’t interested or didn’t follow it closely, that the denial of climate change was credible, or that it was up for debate among most scientists. This gave some credibility (among the general public) to the denialist position that it didn’t deserve. Which then meant there was much more work to do when people realised that the truth wouldn’t necessarily prevail.
I think Oreskes’ Merchants of Doubt probably persuaded many. The scientific intricacies being well beyond me, and others in the general public.
For a Mill type position I guess this means a duty for citizens to inform themselves and engage in debate, and for those with expertise on a matter to communicate in the debate in a way that is popularly accessible.
Something that I think can be drawn out of Fish, but which he doesn’t specifically say (or he might, I read the article a long time ago), is the effect of social position/class on expression of speech. If we take free speech to be a means to an end as Mill does, and we are wary of the rhetorical use of freedom of speech to shut down debate, as we are, then how do we guarantee debates in the marketplace of ideas are resolved through logic and not access? To take a Marxist frame how can we possibly believe that capital does not have a distinct advantage in the expression of ideas within a marketplace when that marketplace is not regulated to give access to the working class? Advocates of ideas, and therefore the ideas themselves, are never on equal footing. This can be extended into debates on hate speech; if we are concerned with the consequences of free speech for truth production we must regulate the realm of speech to grant historically marginalised people an equal platform to their oppressors. Classical concepts of free speech contain no space for this. My reading of Fish emphasised that the boundaries of speech are not only set to allow intelligibility but to privilege viewpoints that appeal to predominant social attitudes/ideology.
Was great to hear David Van Mill’s name at the beginning btw, he was my politics lecturer at the University of Western Australia in undergrad. Thanks for the show!
That idea of allowing all ideas – the good and bad to be aired and then the ideal that the public will just sort out the gold from the chaff, the truth from the falsehoods etc is nice sounding from distance and in vacuum, but for it to work it would need some agreed upon public forum and some agreed upon recognition of truth and how it is measured and what value it is to be given and these just do not seem to be so firm anymore (perhaps they never were and it is just the contradictions arising that reveal this)
and also placing such an idea in the world of time and humans existing from day to day with all the energy and presence they invest in their existence – if a “bad” idea is recognised as such, it is not as though that idea is thenceforth banished from the world and we all take some step forward in the evolution of our spirit – the people who traffic in falsehoods and assertions that everyone has their own facts and that it is all some kind of game..etc – they are hindered at all buy any public criticism, in fact such just empowers them to cast themselves as the rogues, the outsiders, the anti-heros, the stranger who comes to remove the king by mortal combat and thus restore virility to the kingdom and whatever other myths and analogies one wants to make.
The other aspect here is the corruption of all it all by money and other propagandists and quite deceptive powerful people and groups – such as the Koch brothers and their weight being lent on various online and actual universities, places that sell themselves as being all about diverse views when they are most definitely not – and for right wing ideologues, they paint the whole left right divide as being purely a culture war or individualism vs tyrannical collective tripe, and completely eliminate from public thought any awareness of the actual left wing focus on economic issues and human rights and actual freedoms and liberties and their abuse, the destruction of institutions and civil society and public institutions are issues thats the powerful right have been able minimise from being things the public should talk about.
the testing and validating of ideas is failing enormously as the example of global warming you give, most clearly demonstrates and it has been dark money and powerful vested interests that have sown doubt and confusion into the public discussion