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Free Speech: Some Comments

The issue of free speech has been directly addressed by at least one recent post   and raised during the course of a number of other discussions.  So, here are some of my own observations on the subject.

1        As a rough generalisation, I would say that those who discuss the subject tend to fall into one or the other of two categories. On the one hand, there are those who take a tough line and insist upon the right to express an opinion openly, however unpopular or offensive to others it may be. On the other hand, there are more tender souls who express worries over – e.g. – speech which is threatening, inflammatory, or in some way offensive.   Members of the latter group are sometimes prone to argue that, while the freedom of speech and expression may be of great importance, it is necessary to ‘strike a balance’ between it and other values.


The trouble is that those who engage in this dispute between ‘toughies’ and softies’ tend to overlook the question which philosophers who discuss free speech ought to be taking seriously, namely:  How to define a category of acts which ought to be defended on the grounds that they genuinely instantiate the exercise of freedom of speech and/ or expression.?  If such a category can be defined, then – maybe – it could then be argued that acts which fall within it ought to be protected however inflammatory or offensive they may be, whereas those which fall outside the boundary need not be protected.  (After all, the worries people express over, for example,  seriously inflammatory racist speech  are genuine, and, even if you do come down on the side of protecting such rhetoric, you need an argument to explain why it ought to be protected. And there is also the often neglected question of extremely trivial material. Is there really anyone who can seriously defend the right to publish the material, recently described as ‘salacious gossip’ by Deputy Assistant Commissioner Sue Akers at the Leveson Inquiry?) Moreover, if such a category can be defined then there may be some hope of avoiding ‘balance striking’ arguments which, in my view, tend to be rather feeble.  They don’t tell you where the balance ought to be struck, or how.


The point I’m making is hardly original, by the way. It was made by T.M.Scanlon as long ago as 1972.  See his article,  A Theory of Freedom of Expression’ in Philosophy & Public Affairs, 1972, Vo.1, No.2


2        My second observation concerns John Stuart Mill, who inevitably makes an appearance in discussions of free speech, thanks to the position he defends in the famous second chapter of On Liberty. It is that the expressions ‘free speech’ and ‘freedom of speech’ are never used by Mill in that chapter. On the contrary, his argument is a defence of what he calls the liberty of thought and discussion. To take that seriously is to cast his argument in a different – and more accurate – light; for Mill’s argument is, in essence, a defence of the right to express one’s ideas openly when in the pursuit of knowledge. (Mill has further reasons for valuing knowledge. For example, he equates the increase of knowledge with human progress. Still, all that is tangential to the point I’m trying to make here.) In short, Mill is defining a category of acts which ought to be protected., for it follows from his argument that one is entitled to be as unpopular or offensive as one likes when genuinely in pursuit of knowledge but that, in other circumstances – when merely indulging in racist invective, for example – then one may not be.


To this, let me add, firstly, that Mill’s argument can only be broadened into a defence of free speech – as opposed to, say, a defence of the liberty of intellectuals to discuss abstruse issues in the privacy of the seminar room – with the help of the assumption that society at large can be, or that it has the potential to be, construed on the model of an arena with which ideas can be advanced for discussion and debate. I think Mill did assume this. Such an assumption is implicit in, for example, his essay, ‘The Spirit of the Age’. I also think that he was right to make the assumption and that  his vision is an inspiring one. (If you’re interested, I argue the point at more length in my article, ‘On Mill, Infallibility, and Freedom of Expression’, which you can find in Res Publica 2007, Vol.13, No. 1. That’s Res Publica the academic journal, not the right-wing think-tank.)


Secondly, there is – of course –  room for discussion over precisely what falls within the category of acts Mill wants to defend  and what does not.  His argument, also carries implications for many of presently troublesome issues. For example, it seems reasonable to ask whether the ideal of free speech is genuinely served when, as now, every major newspaper is owned by one or the other of a few tycoons. Does this create a genuinely level playing field upon which ideas, even unpopular ones, are tested against objective standards of rationality in open debate? (Well, it’s just a question.)


Thirdly, of course Mill’s is not the only credible approach to defining a class of acts of expression. (Another is to connect free speech with the democratic process.) Here, I am only pointing out that – correctly understood – it is one fruitful way to approach the free speech issue.


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6 Comment on this post

  1. Both the approaches you outline seem to want to draw a ring around a set of speech acts that we "defend", with stuff outside that ring being "outlawed" in the old sense of being "unprotected by the law". I'm uncomfortable with the idea that my speech acts are only protected so long as I'm "in the pursuit of knowledge" or on the basis of some other principle. This is because it sounds as though I need a note from the teacher (explaining why I'm acting in accordince with some principle) before I open my mouth on anything controversial. I prefer libertarian arguments here – on what basis would the state have the right to use its coercive powers to tell someone to shut up? It's like reversing the burden of proof – instead of having to show that you're acting in accordance with some nebulous principle like acting "in the pursuit of knowledge" you'd be looking for specific fouls as reasons for imposing sanctions. I'd argue there are good reasons to call fouls – falsehoods, especially harmful ones; personal cruelty; etc. But the burden of proof would be on the person wanting to shut down conversation, rather than on the person committing the speech acts.

    Practically, I think universities show the danger in the approach Alan describes (ie speech acts require justification, as opposed to sanctions requiring justification). There are any number of interesting conversations that cannot happen in universities because they're "dangerous"/not worth the hassle. Ask Larry Summers. I don't think I know anyone who thinks of universities as bastions of free speech anymore, which is a great shame. My friends outside academia usually think of universities as being like Miss Manners, except about politics instead of which fork is appropriate for the salmon.

    1. But Larry Summers' ill-founded hypotheses were perfectly admissible as a subject of conversation inside the university, it just wasn't (and isn't) acceptable coming from the mouth of its president in the context in which he said it.

      Why? Well, it's one thing if, for example, an evolutionary biologist / sociologist in the course of his or her study says that women may just not be constitutionally suited to achieving genius in mathematics and physics, and quite another when the (effective) chair of the hiring committee says it – as a way of justifying what many have said are continued discriminatory hiring practices, and moreover without any substantial evidence or argument for the point – other than the fact that his hiring committee and others like it have never hired many women in the past (this supposedly proving that women were by-and-large simply not up to the task). Can you trust this man to continue chairing the hiring committee?

      Such observations seem to me to justify rather well the kind of distinction Dave seems to want to deny – a kind of speech that is legitimate as part of a course of academic inquiry (an essential component of "academic freedom"), but illegitimate when the speaker is playing various other roles. Why should the burden of proof be on others to prove that Larry Summers' speech act (or his hiring practices) actually harmed anyone? It's enough that his speech merely suggested a lack of impartiality, and that others accordingly lost trust.

      (NB I'm not, of course, saying it should be illegal for Summers to have said what he said, but just that it was perfectly good grounds for giving him the boot, and that it was no infringement of any kind of free speech worth valuing when said boot-giving occurred.)

      1. I don't think I was denying that the "legitimacy" of a speech act can depend on context. I think it's perfectly acceptable to shout "fire!" in an uninhabited desert, but not in a crowded movie theatre. And I accept that universities and corporations are different from the state in this regard, and that different duties arise depending on our relationships with different institutions. I understand that responsibility sometimes brings the need to mouth pieties rather than to say what you really think: nobody expects the Mayor of Swindon to fess up and admit that Swindon's a dump, for instance. We can all agree about these things. [Not Swindon, the points about context and free speech.]

        My point re:Summers was that the way speech acts are treated in universities means that lots of opinions common among the general public are verboeten in the academy. Which strikes me as odd – I grew up thinking they were places where unpopular views could be held up to the light and examined. And that, empirically, is not the case – they very much do not embrace the whole "disapprove of what you say but defend to the death your right to say it" thing. [Actually, universities are very conservative places, and so are academics (especially those whose political beliefs are in the ascendent within the academy).]

  2. I'm inclined to agree with Dave about the burden of proof. And I suspect Mill would have been ready to accept that customary morality should include a right to publish salacious gossip, if only because of the risk that suppressing such gossip would pose to genuinely valuable enquiry. My hunch is that he'd have said that it's up to the education system to produce people who aren't interested in such gossip in the first place, a task it fails to achieve perhaps even more egregiously than in Mill's day.

  3. Thanks for these responses. Could I deal with the Dave/ Roger point first, and then I’ll turn to yours Simon.

    So – Dave and Roger – I think you have a point. (I take it that you are both making the same point or, at least, that you are broadly in agreement with each other.) In fact, I think you’ve touched upon something which I never seem to stress as much as I should whenever I find myself writing about this stuff, namely my view, for any speech act whatsoever, there is a moral presumption in favour of leaving the person who wishes to perform it free to do so. In fact, I don’t see how things could be otherwise, given that the ability to use language is so fundamental to so much of human life. (It should be obvious that I’m using the expression ‘speech act’ as shorthand for a whole range of communicative acts of expression here.) But then, as a follower of J.S.Mill, there are many principles I could invoke in support of my view. Just for example, I could insist that no-one has the right to interfere with another’s liberty of action unless it is to prevent harm to others, – and there are, no doubt, many other lines from Mill’s text which I could recruit in the same cause.

    So, it is just not true that, in my ideal world, one would need special permission to say or do certain things. In fact, I’m inclined to agree with Roger that a world in which salacious tittle-tattle is a feature of everyday life is generally preferable to one in which it is not. Such gossip is like static on the radio. It’s just there. It can be entertaining fun and, when it isn’t, all one can do is live with it.

    However, the trouble is that, for a great many speech acts, simple consequentialist considerations are perfectly sufficient to justify their prohibition. In fact, such is the case with most trivial and salacious tittle-tattle. It is – I suppose – quite often the case that subjects of the tittle-tattle find it harmless enough, but where they do object, and for whatever reason, what possible justification could there be for protecting it’s dissemination? (Were he still alive, would Voltaire really insist that he would defend The Sun’s right to publish gossip about Hugh Grant to the death? If he would, I think he would be pretty silly, don’t you?)

    The same goes for many other speech acts. In fact, I really don’t understand what ‘free speech fundamentalists’ who say things like, ‘One should be free to say whatever one likes however inappropriate or offensive it may be’ think they are banging on about. Do they think it would be OK if I were to approach passers-by at random and abuse them verbally? I doubt it. What if I were to buy a spray-gun and write, ‘Dave Frame is a prat!’ on walls all over Oxford. Would that be OK? Or, the next time I attend a seminar at the James Martin School, what if I were to interrupt the discussion with a recital of , Albert and the Lion? It seems silly not to recognise that there would be perfectly good consequentialist arguments for preventing me from doing any of these things, and – in fact – it seems to me that those who argue for the fundamentalist position I have in mind tend to assume something like Mill’s ‘thought and discussion’ context without making it explicit.

    So, what is needed is a distinction between the type of speech act to which no special protection need be applied – as in the examples I’ve just listed – and the type which ought to be protected, even when there may good reasons for prohibiting them. (For example, when they are likely to cause a certain amount of harm to others.) I don’t see how one avoids the conclusion, and it is just such a distinction which Mill’s argument for the liberty of thought and discussion supplies, or so I have been arguing. (In fact, Mill himself insists that the liberty of thought and discussion is so important that it requires a special argument to justify it.)

    Now, turning –at last – to Simon’s point. It seems to me that he is absolutely right, and that the Larry Summer’s case raises issues which are precisely the sort which an appeal to context, such as the appeal I am suggesting, is required to sort out. We will make no progress in understanding these things if we represent it as a kind of tennis match, with women’s’ groups on one side of the net, and screechers of ‘political correctness gone mad’ on the other.

    1. Thanks for the reply, Alan. I think we basically agree. I have sympathy for the libertarian inclination to place the burden of proof on those who want to shut conversations down, rather than on those committing speech acts to defend their right to do so.

      But, as I said in my first post**, I'm not a fundamentalist about it – I think there are a number of ethical considerations, primarily but not exclusively consequentialist, that could justify prohibition of lines of speech. On the consequentialist front we've got incitement to violence, obviously, lying about movements on the stock exchange, currency markets etc. But you might also factor in other ethical considerations, like protecting some baseline of human dignity in which people have the right not to be humiliated in some important way. I'm open to those sorts of things, but I'm also wary of them because they're so subjective (in an unhelpful way) – because you can't measure "humiliation". I agree context can help in some ways, but it can't help with this bit. If X commits speech act A and Y gets offended it doesn't strike me as obvious that X or Y are well-positioned to evaluate whether or not A was ok. Refereeing games in which you're playing doesn't usually work when the stakes are at all high.

      **"I’d argue there are good reasons to call fouls – falsehoods, especially harmful ones; personal cruelty; etc. But the burden of proof would be on the person wanting to shut down conversation, rather than on the person committing the speech acts. "

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