Restrictions on Freedom of Public Speech
The question of public speech and its regulation presents itself as an enduring question for philosophical thinkers. To understand the nature of speech, and the extent to which it should be limited, this essay will take numerous steps. First, examining the reasons that freedom of speech is defended by philosopher John Stuart Mill in his work ‘On Liberty’. Second, analyzing the implications of Mill basing his theory in certain assumptions about reason and developing a new theory of speech immune from such criticisms. Third, comparing Mill’s framework to our own through analyzing their application to modern controversies over free speech. Finally, discussing potential responses from Mill to the criticisms raised throughout the essay.
First, Mill’s argument regarding freedom of speech begins with him placing all speech into one of two categories – true or false (Mill, 2001, p. 19). Mill claims that it is impossible to know for certain if speech is false and, even if we did, there is redeeming value in false speech because it can increase our understanding of the truth or contain an element of truth within it (Mill, 2001, p. 19). From the outset it is clear that Mill approaches the issue of speech from a framework of rationality – hence the distinctive categories. It is from this belief in the rationality of the individual that Mill arrives at his generalized claim, known as the ‘Harm Principle’, that “the only purpose for which power can be rightfully exercised over any member of a civilized community is to prevent harm to others” (Mill, 2001, p. 13). For Mill, exceptions to unfettered speech occur only when bystanders may be harmed by the freedom of others and such harm is both physical and immediate. Mill provides the example of an angry mob galvanized against an individual as a result of a pamphlet and states that such speech ought to be limited given its effects (Mill, 2001, p. 52).
However, Mill does not ground his defence of free speech in an abstract notion of individual sovereignty or a principle of non-interference. Mill is a utilitarian and considers, “utility as the ultimate appeal on all ethical manners” (Mill, 2001, p. 14). His overwhelming concern is with the development of mankind which he sees best fostered through the liberation of the individual. This applies especially to speech, intimately connected to thought, with Mill arguing for freedom of speech as the first step on the road to truth. In short, Mill places faith in the speech of the individual not because it is right but because, in the long-run, it will be beneficial to humanity. This is an expression of Mill’s belief that man’s innate rationality will eventually bear positive results when it is not interfered with.
Second, Mill’s argument requires an assumption about human nature – the capacity to voluntarily exercise reason. This is because speech is only in the “permanent interest of man as a progressive being” if it contributes towards the pursuit of truth (Mill, 2001, p. 14). If speech is purely emotive, rather than rational, allowing such speech to flourish is not by necessity an inherently good idea.
There are two alternative views of speech that ought to be considered in place of Mill’s rational conception: self-interest and self-expression. First, speech as self-interest. In this view, speech always reflects the interest of the individual, consciously or not. What we say is not really ‘ours’ but rather the product of our social identity and sociological forces outside of our control. Whilst individuals may sincerely believe that their beliefs transcend interest, that they approximate values, this is not the case.
Second, speech as self-expression. From this perspective, human beings do not have the capacity to produce an idea independent of their desires. The human mind produces rationalizations for biologically pre-determined actions, it does not truly decide between options. Such a viewpoint was expressed famously by philosopher David Hume when he wrote, “Reason is, and ought only to be, the slave of the passions and can never pretend to any other office than to serve and obey them” (Hume, 2017, p. 188).
The existence of this philosophical tension is problematic because Mill’s argument depends on the idea that there is always a chance that we are incorrect, or that false claims will contribute in some form to the truth. Mill’s argument is grounded in a profound skepticism of certainty because if we knew the absolute truth there would be no utility to the discourse he describes. However, his own argument is predicated on an assumption he must make with certainty. The very existence of free speech assumes the capacity of individuals to exercise rational agency. Mill, preoccupied with the limits of free speech, has taken for granted both its existence and its rational nature and, in doing so, undermined his argument for its value.
Therefore, it is necessary to develop an account of speech’s worth that does not depend on a controversial understanding of reason. Speech is valuable not because of its substance but due to what it represents – speech is the outward manifestation of individual thought and cannot be separated from it. Speech has inherent value for the individual because it is necessary for the pursuit of knowledge, which itself is integral to human wellbeing. It is therefore wrong, in most cases, to limit public speech. Not because of the social impact but because it would constrain an individual’s quest for knowledge and that quest is integral to their wellbeing.
From this perspective, speech is worthy of public limitation only when it directly undermines an objective good that is equal to knowledge in its centrality to human wellbeing. An example is the good of ‘life’: speech that clearly undermines any individual’s capacity to experience life in its fullness is worthy of limitation. Discriminatory speech, that characterizes certain individuals as unequal members of the human family would be such an example. Due to the fact that such conclusions differ based on one’s description of wellbeing, this approach accommodates diverse views of human nature.
Furthermore, these claims are insulated from the earlier criticism applied to Mill because the individual quest for knowledge need not necessarily be ordered towards objective truth. Even if all speech is merely self-expression, thought remains integral to the wellbeing of the individual.
Third, in order to properly grasp the question at hand, one must understand exactly who is limiting public speech. It cannot be assumed that the identity of the agent limiting speech will not change the desirable level of limitation. We will consider contemporary questions of free speech in both the law and in the university and compare the implications of Mill’s and our own philosophical framework.
First, the law. In Australia much has been made over the controversy surrounding Section 18C of the Racial Discrimination Act which prohibits speech that is reasonably likely to, “offend, insult, humiliate or intimidate” (Parliament of Australia, 1986). Prohibiting speech in this way would be seen as wrong by both Mill and our own theory. Under this essay’s framework, offence and insult are not serious enough to truly threaten any element of wellbeing. More extreme examples, as raised earlier, could certainly justify limitations on speech. However, from Mill’s perspective, it would be necessary for any physical harm presented by the speech to be both serious and immediate for limitations to be justifiable.
Second, should universities host speakers who give deliberately provocative speeches and have a record of dismissing academic norms? Mill’s theory struggles to provide an answer because it takes for granted that the purpose of all discussion is to pursue reason, to engage in Socratic dialogue. However, as this contemporary example demonstrates, sometimes the purpose of a discussion is not knowledge but reaction. In contrast, the wellbeing-based theory as developed earlier in the essay can acknowledge that certain institutions exist to develop specific elements of wellbeing. Insofar as the pursuit of knowledge is the purpose of academic institutions, not harm minimization, they ought not to permit speakers who do not conform to any one of their stated norms.
Finally, there are two criticisms that Mill could mount against this essay and the theory that has been developed. First, Mill could assert that his account of human nature reason’s objectivity is true, and he need not account for alternative viewpoints. His argument need not be free of controversial axioms, it just has to be correct. Second, Mill could point to the individualistic definition of speech’s value as mistaken. Speech, unlike thinking, is a collective task because we cannot communicate without doing it to someone. Mill could argue that defending speech through individual wellbeing creates an individual right over a collective domain of action. This principle would, in effect, undermine the feeling of mutual obligation that is necessary for constructive dialogue to occur.
This essay has arrived at the conclusion that public limits on speech are determined by two questions. First, what is it about free speech that we value? Second, who is it placing limits on speech? As a result of this, we have developed a theory, through analyzing the work of John Stuart Mill, that locates speech’s value in its inextricable relationship to thought. The pursuit of knowledge should be limited only when it undermines something equally integral to human wellbeing. As such, different theories of wellbeing may produce diverse conclusions on the limitation of speech. Furthermore, such limitations ought to differ between institutions only insofar as their central purpose differs.
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