A Defense of Controversial Speech.

 

A number of different types of speech that have at various times been targeted for prohibition under US law:

 

1.       subversive speech: speech intended to undermine or overthrow a political system or government.

         a pamphlet encouraging drafted soldiers not to report for duty (as in the WWI era case Schenk vs. United States (1919))

 

1.       symbolic speech: not actual speech, but the performance of an action meant to convey a message.

         burning the American flag (as in Texas v. Johnson (1989))

 

2.       offensive speech

         pornography (American Booksellers vs. Hudnutt (1985)); there are two standards described in this decision.

         the so-called Miller Test of obscenity (from Miller v. California, 1973): a work is obscene if it meets these criteria: (i) appeals to the prurient interest, (ii) contains offensive depictions or descriptions of sexual conduct, and (iii) has no “serious literary, artistic, political or scientific value.”

         the Indianapolis ordinance defining pornography in terms of specific content, viz. content depicting women as sexually submissive or as enjoying humiliation.

         hate speech

 

 

Scanlon’s Defense of Harmful Speech.

 

Thomas Scanlon (b.1940)[1]

         “A Theory of Free Expression,” Philosophy and Public Affairs 1, 1972, 204-26 (available online through GALILEO)

 

Freedom of Speech has Intrinsic Value.

 

Scanlon’s defense of free speech is not utilitarian like Mill’s.

 

Rather, he defends free speech on the assumption that it has intrinsic value. Being able freely to express one’s beliefs is part of what it is to be autonomous, and it is important that individuals be autonomous, whether or not this results in good consequences, i.e., whether or not individual autonomy has extrinsic value.

 

Scanlon’s position is not that being able to express oneself freely is valuable as a means to the end or goal of being autonomous. Rather, his view is that being able to express oneself freely is part of what it means to be autonomous.

 

So, since autonomy is intrinsically valuable, freedom of expression is also intrinsically valuable.

 

 

Six Forms of Harmful Speech that Should be Prohibited.

 

Scanlon lists a number of examples of harmful speech that he believes it is legitimate to prohibit in order to prevent the sort of harm they cause:

 

1.       Speech that “bring[s] about injury or damage as a direct physical consequence. ... the sound of my voice can break glass, wake the sleeping, trigger an avalanche, or keep you from paying attention to something else you would rather hear.”

 

2.       Speech that “places another [person] in apprehension of imminent bodily harm. ... [A]ssaults and related acts can ... be part of larger acts of expression, as for example when a guerrilla theater production takes the form of a mock bank robbery which starts off looking like the real thing, or when a bomb scare is used to gain attention for a political cause.”

 

3.       Speech that harms someone by “causing others to form an adverse opinion of him or by making him an object of public ridicule” (e.g. defamation, interfering with his right to a fair trial).

 

4.      Shouting “fire!” in a crowded theatre when there is no fire.

 

This example originated in a judicial opinion written by Oliver Wendell Holmes, Jr. in the case Schenck vs. United States (1919).

 

5.       Speech that “contribute[s] to the production of a harmful act by someone else ... [e.g.,] when the act of expression is the issuance of an order or the making of a threat or when it is a signal or other communication between confederates.”

 

6.       Speech that “radically increas[es] the capacity of most citizens to inflict harm on each other,” e.g., publishing a simple recipe for nerve gas that anyone could easily follow.

 

Two Forms of Harmful Speech that Should Not be Prohibited.

 

But on Scanlon’s view, there are at least two types of harmful speech that should not be prohibited.

 

In taking this view, Scanlon is influenced by a central idea of John Stuart Mill; this is Mill’s so-called “Harm Principle”:

 

The Harm Principle: The only justification for interfering with the actions of other individuals is to prevent them from doing harm to others; the desire to do them (physical or moral) good does not justify interference. In Mill’s own words:

 

...the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. ... the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. (On Liberty ch.1 9)[2]

 

Scanlon’s view that there are two sorts of harmful speech that should not be prohibited by law is captured in a principle he names after John Stuart Mill: the Millian Principle.  Scanlon calls his idea the Millian Principle, presumably because he believes that it is in the spirit of Mill’s Harm Principle.

 

Scanlon’s Millian Principle is as follows:

 

There are certain harms which, although they would not occur but for certain acts of expression, nonetheless cannot be taken as part of a justification for legal restrictions on these acts. These harms are: (a) harms to certain individuals which consist in their coming to have false beliefs as a result of those acts of expression; (b) harmful consequences of acts performed as a result of those acts of expression, where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing. [3]

 

In other words, speech cannot be prohibited simply because it has one of the following harmful consequences:

a)      it results in listeners having false beliefs

b)      it results in harmful consequences by causing agents to believe (or increases their tendency to believe) that they should perform actions that are harmful

 

Scanlon’s argument for the Millian Principle is as follows:

 

1.      “[A] legitimate government is one whose authority citizens can recognize while still regarding themselves as equal, autonomous, rational agents.”[4]

 

         If a government is legitimate, then its citizens can acknowledge its authority over them while at the same time thinking of themselves as autonomous and rational agents politically equal with other citizens.

 

         This recalls Immanuel Kant’s insistence that only representative republics are morally legitimate forms of government. (Scanlon refers to Kant in introducing this idea.)

 

2.       To view herself as autonomous, a person must think of herself “as sovereign in deciding what to believe and in weighing competing reasons for action."

 

         This includes applying one’s own standards of rationality when deciding what to believe, and in judging facts as reasons for acting. More specifically:

 

[a]n autonomous person cannot accept without independent consideration the judgment of others as to what he should believe or what he should do. He may rely on the judgment of others, but when he does so he must be prepared to advance independent reasons for thinking their judgment likely to be correct, and to weigh the evidential value of their opinion against contrary evidence.

 

         In other words, a person who believes something simply because someone else says he should is not truly autonomous.

 

         An autonomous person can rely on others’ judgment in accepting or rejecting a belief (e.g., if I believe that there is a hurricane coming because the director of the National Hurricane Center says there is a hurricane coming); but he must be able to give independent reasons for thinking that the other person’s judgment is worth relying on (e.g., because the director of the NHC has been doing that job for years, has lots of experience reading the various weather tracking devices, etc.)

 

3.      If the government were to prohibit speech because it is harmful in either of the ways mentioned by the Millian Principle, it would thereby disallow citizens from viewing themselves as sovereign in this way:

 

         On the first sort of speech: “The harm of coming to have false beliefs is not one that an autonomous man could allow the state to protect him against through restrictions on expression.”

         On the second sort of speech: Autonomous citizens could not allow the government to prohibit speech advocating illegal actions, because to do so is to give “the state the right to deprive citizens of the grounds for arriving at an independent judgment as to whether the law [in question] should be obeyed.”

 

4.      So it would be illegitimate for a government to prohibit speech because it is harmful in either of those ways (i.e., the Millian Principle is true.)

 


[1] A biographical sketch of Scanlon is here: http://phil.arts.cuhk.edu.hk/philosophy.php?page_id=79 . For an account of Scanlon’s criticism of the notion of well-being, see section three of Roger Crisp, "Well-Being," The Stanford Encyclopedia of Philosophy (Summer 2003 Edition), Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/entries/well-being/#3>.

[2] This was not a completely new idea. Previous thinkers (e.g. Adam Smith, David Ricardo and Mill's mentor, Jeremy Bentham) had argued that the state's power ought to be limited so as to leave a private realm over which individuals have control. Mill's Harm Principle was an attempt to condense the ideas of these earlier thinkers into a single, simple principle. This idea is obviously echoed in the libertarianism of, e.g., John Hospers.

[3] Scanlon, “A Theory of Free Expression,” p.213.

 

[4] Ibid., p.214.