Free Speech. Jonathan Seglow

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СКАЧАТЬ see in detail in later chapters. But Mill’s view is particularly susceptible to the problem of the spread of harmful speech, and this is for two reasons.

First, unlike the autonomy and democracy arguments (which we will consider in a moment), Mill’s future-oriented consequentialist approach tells us that the value of free speech lies in its results, and more specifically in its positive effect on enlightened human progress. If this does not happen, if a positive effect is not registered, his theory falters. Second, as a utilitarian interested in human happiness, Mill seemingly should be concerned with other sources of human utility besides the achievement of better justified views and opinions. The fear, insecurity, discrimination and sometimes violence that vulnerable ethnic, religious or sexual minorities suffer as a result of hate speech significantly undermine the well-being of these groups; surely they, too, should count when it comes to assessing the consequences of freedom of speech? Conversely, racist, Islamophobic, anti-Semitic, homophobic and other forms of harmful speech probably serve group solidarity and the identity formation of their illiberal authors, but should not these, too, count as sources of well-being, in the eyes of the consistent utilitarian? If so, Mill’s consequentialist approach to free speech may seem less liberal than it appears at first glance.

      Yet very often Mill is correct: the best way to combat false or harmful speech is, frequently, with more speech. Few of us think that people who deny the reality of human-caused climate change, or maintain that essential vaccines spread harmful illnesses, or argue that the COVID-19 pandemic was caused by 5G mobile phone masts¹ should be actively censored by the state or by social media, although there may be a case for not giving them a prominent platform (e.g. on television). To that extent, most of us are good Millians: we think that false speech should be addressed with reason and evidence rather than silenced.

Free speech and autonomy

Autonomy involves a person’s governing her life according to her own judgement of what is best. It is opposed to a state in which some other agents usurp or thwart that judgement and direct the person’s life themselves. Such agents might be individuals (e.g. a slave owner, or a controlling husband who runs his wife’s life), groups (e.g. a religious hierarchy that directs every aspect of its adherents’ lives) or the state, which has the capacity coercively to require that citizens live in a certain way. Although there are affinities between autonomy and Mill’s ideal of individuality, the relationship between autonomy and free speech is more complex than in Mill’s truth-based account, for at least two reasons. First, it has been proposed in different ways by different contemporary writers; second, we need to attend more carefully to the distinctions between deontological and consequentialist models and between speaker- and audience-based views. A further distinction is between formal and substantive theories of autonomy (Baker 2011, pp. 253–4). Substantive autonomy is a character ideal – namely the ideal of self-government, which a person may realise in her life. Formal autonomy implies that third parties respect a person’s right to conduct her life according to her own best judgement.

      Formal autonomy may be speaker-based or audience-based – that is, based on respect for a person’s capacity to express her views or on respect for an audience’s right to hear everyone’s view – but, either way, it is deontological rather than consequentialist in character. It implies that third parties are prevented from interfering in individuals’ lives (in our case, by having their speech limited), when they may want to do so for reasons of their own or for paternalistic ones – for example if they think that they could improve people’s lives by preventing them from accessing material they consider morally reprehensible. The only valid reason for interfering with a person’s formal autonomy, on this argument, is to protect the formal autonomy of another when that person would otherwise fail to respect it herself. (Here there is a clear affinity with Mill’s harm principle.)

Since we certainly need speech (ours and others’) in order to govern our own lives, the way autonomy can ground a defence of free speech is clear. A number of free speech theorists have adopted this strategy. One of the foremost American legal commentators on free speech, the late C. Edwin Baker (1997, 2011), proposed a speaker-based view that emphasises how (substantive) autonomy involves disclosing one’s own beliefs to a social world we share with others. Respect for autonomy, for Baker, ‘requires that each person must be permitted to be herself and to present herself [to others]. She must be permitted to act in and sometimes affect the world by at least some means, in particular by trying to persuade or criticize others’ (Baker 1997, p. 992). Respect for free speech, as part of respect for autonomy, protects people’s capacity to interact with one another on their own terms.

      In another influential version of the argument, the late American legal philosopher Ronald Dworkin argued for a ‘right to moral independence’, which closely resembles respect for the formal autonomy of speakers and of audiences (see Brison 1998, pp. 324–5). According to Dworkin,

      People have the right not to suffer disadvantage in the distribution of social goods and opportunities, including disadvantage in the liberties permitted to them by the criminal law, just on the ground that their officials or fellow-citizens think that their opinions about the right way for them to lead their own lives are ignoble or wrong. (Dworkin 1981, p. 194)

      Here the reference to opportunity and liberty incorporates freedom of speech. Dworkin’s target was authorities who wished to regulate the availability of pornography because they considered it base or sinful, or thought that people’s lives would go better if they did not view pornography.

      But the most philosophically elaborate formal autonomy view is provided by another philosopher, T. M. Scanlon (1972), in a quite old but much cited article. For Scanlon, respecting formal autonomy involves respecting a person’s sovereignty in deciding what to believe and what to do in light of what she hears, sees or reads; so his is an audience-based theory. In contrast to Dworkin, Scanlon is concerned with individuals who might go on to commit harms against others on the basis of speech they receive. According to him,

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. (Scanlon 1972, p. 213)

      Suppose I calmly tell you that Jews control our country’s financial system, that Muslims are all terrorists, or that our country’s gay teachers are trying to ‘make’ our children gay. All three views are false. But this fact cannot justify censoring my speech, because it is you, as an autonomous agent, who holds the right to decide what to believe. As Scanlon puts it in speaking of someone who has heard harmful views, ‘[t]he contribution to the genesis of his action made by the act of expression is, so to speak, superseded by the agent’s own judgment’ (Scanlon 1972, p. 212). However, if you were already an anti-Semite, Islamophobe or homophobe – that is, you already had those wrongful beliefs – and I urged you to attack one of these groups, or, even worse, if you had already decided to attack them and I gave you key information helping you to do so, that would be a different matter: in such cases my speech could be legitimately restricted. But, to use one of Scanlon’s examples, Martin Luther, who nailed his 95 theses to the door of the Wittenberg Cathedral, thus starting the Protestant Reformation, could not be held responsible for the bloody religious wars that resulted from that major schism within the Christian world.

      For some people, this will be counterintuitive. If you are the victim of a hate attack, you might well believe that you have the right to complain not just against your attacker but also against the person or group that fed him with prejudice and bigotry. Your attacker is morally responsible for what he did, but he acted in certain circumstances, and – even СКАЧАТЬ