Free Speech. Jonathan Seglow

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Introduction

      The 2016 Brexit referendum in the United Kingdom, Donald Trump’s election as president of the United States and re-election campaign in 2020, the rise of right-wing populism in Europe and further afield, the current wave of Islamophobia and anti-Semitism, and the hate speech targeting people of Chinese origin during the COVID-19 pandemic have brought freedom of speech to the forefront of public and academic debate, together with the question of whether hateful expression ought to be regulated. The tension between freedom of speech and offensiveness also continues to elicit controversy, as shown for example by the 2006 Jyllands-Posten Muhammad cartoons controversy and, more recently, by the attacks on Charlie Hebdo’s offices in Paris in 2015 and 2020. The growing availability of Internet pornography has reignited long-standing debates between liberal and feminist thinkers concerning the permissibility of censorship and the tension between individual freedom and harm to women. Last but not least, recent phenomena such as fake news, trans wars and race culture wars have spurred new controversies regarding whether, when and how online speech should be regulated.

For example, in June 2020 Joanne K. Rowling, the author of Harry Potter, posted the following tweet in response to a headline about ‘people who menstruate’: ‘“People who menstruate”. I’m sure there used to be a word for those people. Someone help me out. Wumben? Wimpund? Woomud?’.¹ Soon Rowling became the target of countless tweets accusing her of transphobia.² In another example, in September 2020 US President Donald Trump attacked the Black Lives Matter movement and stated that ‘[l]eft-wing mobs have torn down statues of our founders, desecrated our memorials and carried out a campaign of violence and anarchy … Whether it is the mob on the street, or the cancel culture in the boardroom, the goal is the same: to silence dissent, to scare you out of speaking the truth and to bully Americans into abandoning their values.’³ The contentiousness of the debates that followed these and similar incidents renders the theoretical analysis of freedom of speech, and of its permissible limits, both necessary and urgent.

      Asking why exactly free speech should be protected is not a redundant task. Free speech informs the political world in which we live. Most liberal democracies have the right to free speech enshrined in their constitutions and bills of rights – the US First Amendment is the most famous example. Even many non-democratic states pay lip service to free speech, though they may not always respect it in practice. The UN Declaration of Human Rights gives a prominent place to free speech, as does the European Convention on Human Rights, along with other declarations and charters. But all these documents are, essentially, the expression of our shared attachment to the value of free speech among other basic liberties; they do not tell us why free speech is among their clauses or articles and why those who drafted constitutions and the like thought it important to include free speech in the first place. After all, constitutions can get it wrong, or at least contain principles that are highly contested. It is controversial, for example, whether Americans really have a human, as opposed to a constitutional, right to carry a weapon, and until 2018 it was unconstitutional in Ireland for women to seek an abortion.

That people do not often reflect on these questions is also evident from our everyday experience. For example, when we ask students, during lectures or seminars, whether and why hate speech laws or other forms of censorship are wrong, a response we often receive is: ‘Of course these are wrong, they violate free speech!’ But when pressed to explain why there should be free speech in the first instance, students often find it harder to articulate good arguments in support of it; they often seem to assume that the value of free speech is somehow self-evident. This assumption risks transforming our commitment to free speech into an ideological dogma and leaves little room for justifying the regulation of certain kinds of speech, even when we find them intuitively abhorrent.

      We have an interest in knowing why free speech is significant both because we would benefit from articulating the common intuition that it is and because free speech may be limited by laws and regulations – or, less formally, by the power of social sanction (as when someone fears the stigma of expressing an unpopular view); and, if these limits come up against the value of free speech, we want to know what that value is. Perhaps free speech is not actually valuable in some circumstances, where it is limited – hate speech may be one example – but, again, establishing this requires an understanding of what its value is in the first place.

In exploring this question, it is worth noting in the first place that speech may actually be limited in all sorts of ways that are not at all controversial. Bribery, perjury, harassment, discrimination, plagiarism, copyright violations, selling state secrets, price fixing, insider trading, defamation and threatening somebody with a weapon are illegal in most jurisdictions, but, because we are communicative creatures, they all involve speech in some way. So why should we not be free to engage in them? The basic answer is that these are all forms of wrongful conduct, not just speech. But the distinction between speech and conduct is far from simple. After all, if someone offers you a job, warns you that there is traffic ahead, or says that she wants to divorce you, she is also acting in various ways, not simply speaking, even though these are all perfectly legitimate instances of free speech. By contrast, wrongful conduct invades people’s autonomy, violates their rights, puts them at risk, arbitrarily treats some worse than others, and so on; and in such instances speech is inextricably bound up with these harms. As we will see in cases where free speech is controversial, those who argue for limits argue precisely along these lines: they point out that speech involves СКАЧАТЬ