Free Speech. Jonathan Seglow

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СКАЧАТЬ absence. The agents responsible for engineering those circumstances, for example by creating extremist websites, arguably bear some responsibility too. Unlike Scanlon, then, we often think that speech that prompted individuals to commit harm should be regulated in some way.

A further issue with the autonomy theory is that it is relatively indiscriminating in that it does not offer especially stringent protection for certain kinds of high-value speech (see Sunstein 1993, pp. 141–3). From the perspective of autonomy, a view is a view that we have the right to receive or to express. But, like Mill, many thoughtful people today attach special value to speech about moral, religious, political, historical, scientific, cultural or artistic matters. Suppose, for example, that a government concerned about mitigating the effects of climate change banned airlines from advertising on television, radio, the Internet and print media in the same way in which, for public health reasons, it currently bans cigarette manufacturers from advertising. Compare that with a government that, concerned about its re-election prospects, sought to ban from those same media all discussion of an opposition party or movement. For everyone who values democracy, there seems to be something intuitively much more troubling about that second ban. But, from the perspective of respect for autonomy, it is less clear how the political ban is worse.

      For most people who value autonomy, what really matters is not just its formal but also its substantive dimension – the ideal of individuals realising their capacity to chart their own lives. After all, it might be argued, there is little point in respecting a capacity that few people ever realise, if any at all. On the substantive view, personal autonomy is the ideal that individuals critically evaluate the cultural resources around them, including the speech of others, in order to choose and pursue those aims that they endorse. Since, in order to live self-directed lives, we also need to speak to others, the substantive view supports free speech both from the perspective of audiences and from that of speakers themselves.

There are, however, two large issues that stand in the way of a close connection between speech and substantive autonomy. One is that much speech bypasses or even subverts the capacity for critical reflection that lies at the heart of the ideal of substantive autonomy; thus, on the deontological view, it fails to respect this capacity or, on the consequentialist view, it fails to promote it. In a self-critique of his 1972 article, Scanlon draws attention to how some of the speech we are exposed to as audiences may not always help us to be ‘sovereign in deciding what to believe and in weighing competing reasons for action’ (Scanlon 1979, p. 531). ‘Expression is a bad thing’, he writes, ‘if it influences us in ways that are unrelated to relevant reasons, or in ways that bypass our ability to consider these reasons’ (p. 525). Deceptive and subliminal advertising are clear examples of speech that bypasses our rational autonomy in order to persuade us to think and act in certain ways. And so are, arguably, certain types of food labels or forms of expression that are used as nudges, to ‘[s]ystematically [exploit] non-rational factors that influence human decision-making’ (Hausman and Welch 2010). We might also think that a diet of fake news, as a result of which individuals are continually exposed to false views for which there is no evidence, undermines these individuals’ capacity to assess critically what they hear, see and read. (We return to the issue of fake news in Chapter 6.) As Susan Brison has argued, hate speech, too, can undermine audiences’ and bystanders’ capacity for autonomy by leading them to acquire false beliefs such as that they are inferior and by undermining their self-esteem, both of which damage the capacity to reflect critically on one’s surroundings (Brison 1998, pp. 326–8).

      The other problem with the substantive view is that many people are not (or do not want to be) autonomous in the sense described by the ideal presented here. Consider a person who enters a closed religious order, where every aspect of her life is governed by strict rules interpreted and administered by religious elders. For such a person, free speech may still be important because it allows her to participate in religious prayer or other rituals; indeed these seem especially important and valuable forms of speech, but not because they involve the exercise of autonomous capacities. Or imagine a person who is a slave to peer pressure and craves approval from others so much that she follows the lead of her friends and family in every important life decision. Such a person does not seem to be very autonomous either, but most of us would argue that free speech is equally necessary for her. Perhaps relatively few people employ critical reflection and self-conscious choice in the way autonomy demands; nor does it seem necessarily wrong to reject autonomy. If the ideal of autonomy is ‘sectarian’ and autonomy as a fundamental good is ‘an idea about which there is much reasonable controversy’ (Cohen 1993, p. 222) in diverse societies, then according to many liberals it may not be politically legitimate for the state to protect free speech on its basis (cf. Rawls 2005 and Bonotti 2015).

Faced with this lack of connection between free speech and autonomy, a number of contemporary writers have sought to define some central interests of persons – capacities that, if realised, enable all people’s lives to flourish – which are more closely related to free speech.

      Jonathan Gilmore, for example, has argued that articulating our views to others is part of the very process of coming to form and understand our own ideas, judgements, opinions and beliefs in the first place (Gilmore 2011; cf. Garton Ash 2016, pp. 73–4). Likewise, the American philosopher Seana Valentine Shiffrin sets out a number of interests people have, namely in theoretical and practical thought, in exercising their imagination, in becoming distinct, authentic individuals with identities of their own, in acting as responsible moral agents, in living among other people, with all the mutual social influence that this involves, and in being recognised by others as persons with their own views (Shiffrin 2011, pp. 289–97). Like Gilmore, she also posits an interest in understanding the contents of our own minds. All these interests require free speech for their realisation. Shiffrin categorises her theory as belonging to the autonomy family (pp. 283, 297–303) but, unlike in the sectarian version of that view, her interests involve ‘sparer assumptions’ (p. 298), which seem more genuinely universal.

Free speech and democracy

The connection between democracy and free speech is intuitive. One cannot really imagine a democratic society without reasonably widespread free speech, and empirically democracies invariably do a better job of protecting free speech than dictatorships. Free speech in the public sphere enables parties to assemble coalitions of supporters, allows the opposition in legislatures to cross-examine the government, helps to mobilise protest movements, and gives citizens the liberty to criticise governments and to seek to shape public opinion. These more specific connections can be interpreted in consequentialist terms. On this view, free speech is a necessary instrument that allows democracies to flourish; without it, democratic life withers away. There may be something to this argument, but free speech seems to be a constituent of democratic culture, not merely an instrument to achieve it: democracy and free speech are not analytically separable in the way in which truth and free speech are in Mill’s consequentialist argument. Hence the connection between democracy and free speech seems deontological more than consequentialist.

The first writer to make explicit the connection between free speech and democracy was Alexander Meiklejohn, in his 1948 book Free Speech and Its Relation to Self-Government. Like other US scholars after him, Meiklejohn was concerned with interpreting that country’s constitutional tradition. From the 1776 US Declaration of Independence he drew the lesson that no one should be called upon to obey a law unless he or she (originally, of course, only he) had a share in making it (Meiklejohn 1948, pp. 10–11). Being bound by laws that limit your liberty, when those laws arose from a process in which you had a say, is legitimate in a way in which being bound by laws that emanated from elsewhere is not. Meiklejohn was impressed by the vigorous political debate practised in local town meetings in New England in the north-eastern United States, a tradition that continues to some extent to this day. Town meetings are a form of direct democracy. Local citizens come together to debate and decide on policy priorities for their area. For Meiklejohn, apparent limits on free speech in those meetings were in fact a means of enabling it. If a community is divided over whether to adopt some controversial СКАЧАТЬ