The Limits of Free Speech (Part One)

Mar 29, 2018, 10:23 PM

Wes, Mark, Dylan, and Seth have a free-form discussion on contemporary issues regarding potential restrictions on speech, drawing on Stanley Fish's “There’s No Such Thing as Free Speech, and It’s a Good Thing, Too” (1994) and Joel Feinberg’s “Limits to the Free Expression of Opinion” (1975), and also on David van Mill's Stanford Encyclopedia of Philosophy article, "Freedom of Speech," John Milton's Areopagitica (1644), and J.S. Mill's On Liberty per our ep. 183.

What are the legitimate limits on free speech? Mill argues that speech can be legally limited and/or socially censured when it's harmful, but what does that mean? Philosopher of law Feinberg gives several categories of speech that can be regulated and discusses the difficulties in applying each category: defamation (including "malicious truth"), invasions of privacy, causing panic, actions expected to provoke retaliatory violence ("fighting words"), and incitement to crime. He does not consider "sedition" legitimate to prohibit (Mill and Spinoza did). However, he does consider (in "Offensive Nuisances," a chapter from a different book that some of us read part of, The Moral Limits of the Criminal Law, Offense to Others, from 1985) that there are some actions that are not overtly harmful but that, just through their being offensive according to community standards (such as sex acts in public), can be legitimately prohibited.

The Stanford article begins by arguing that free speech isn't an end it itself; we don't just want to hear people talk. We value unrestricted speech for some particular reasons. For instance, Mill and Milton argue that we need it to make sure that politically and even psychologically we don't stagnate. Ideas need to be regularly challenged both to make the wisest possible decisions in what to believe (having all ideas on the table and vigorously defended by someone) and in gaining a better understanding of our ideas through having to defend them against all comers. However, that means that when some particular speech act is detrimental to those goals, it's a candidate for censure. Given the history of discrimination in the USA, does it help us to have vigorous debates going on now about whether racial minorities are inferior to whites? Or does the crankish insistence of racists just demoralize us and make deliberative conversation as a practical matter more difficult?

Stanley Fish argues that all claims of "free speech" have within them an underlying commitment to some ideology that really favors some kinds of speech over others. As a Milton scholar, he discusses the Areopagitica, which is an argument against having a central government censor who would review all books before publication, as not inconsistent when Milton clarifies that of course he doesn't mean that Catholic doctrines should be freely expressed. Milton is arguing for open deliberation, and "popery," as he calls it, requires us to not deliberate for ourselves, but to submit in all our judgments to the infallible pope. To modernize and generalize this, the point is that free speech is based on liberal values, and so allowing attacks on the institution that allows for this freedom is self-defeating. (Karl Popper called this the "paradox of tolerance.")

Wes argues that no, we have to bite the bullet: A liberal society is not one that discourages anti-liberal speech, but one with liberal institutions that allow for all nonharmful speech, and that the standard for harm should be narrowly interpreted as applying only to tangible harms of particular people and clear and present danger.

Most hate speech, on this view, should be legally permissible, and certainly any writing should be. If something is merely offensive, then per Feinberg, it should be allowed if it's reasonably easy to turn away from it. Simply don't read that book, or don't go to that rally.

Things become more difficult when we move from legal matters to what organizational policies such as those of campu...