Freedom of expression – restricting speech for the sake of free speech Essay
Freedom of speech is almost universally endorsed in western-liberal countries. Literally, speech refers only to the communication of thoughts in spoken words but more widely interpreted the concept also includes publications, television and the like. The intuitive idea of how to promote free speech is to allow more speech. Therefore, proponents of free speech oppose regulation and restriction of speech others advocate e. g. on grounds of public morality. But what if speech (e.g. hate speech) itself prevents speech, what if speech ‘silences’ (the voice of the victims)? The following paper argues that speech can silence, in a way that amounts to a violation of others’ freedom of speech.
The case will be made that under certain conditions – an important reservation – restriction is appropriate, that indeed freedom of speech is promoted by restricting speech, and that liberals of each facet ought to concede this.
How speech may silence “[The free speech of men [producing and consuming pornography] silences the free speech of women” by making it difficult for women to voice their opinions, or preventing their views from receiving a fair hearing, or causing what they say to be misunderstood. So argues C. MacKinnon in her argument for the prohibition of (certain forms of) pornography. One must not accept her specific claim and demand to recognise that speech can have a silencing dynamic in the sense that it can disable, weaken or discredit a would-be speaker.
Speech may drown out the voice of the disadvantaged; it may make it impossible for marginalized groups to participate in public debate; it may deprive words, when they are spoken, of their authority; it may constrain comprehension and consideration of what the victims say. The probably most traceable example of such a dynamic is racist hate speech that threatens a minority, diminishes the victims’ self-esteem, possibly promotes a false construction of their identity on part of the audience and thus impedes their participation in debate. Obviously, these are empirical
claims and their examination cannot and will not be the subject of this essay. The issue is that the restriction of speech that would feature such effects is opposed by some on grounds of the conceptual argument that these should not be regarded as ‘silencing’ in the sense that it amounts to a violation of freedom of speech. In the following I want to examine more exactly the claim, and objections to it, that speech can deprive of the freedom of speech and therefore, in particular, ought to be restricted (under certain conditions, cf. final section).
Restricting speech for the sake of free Speech Preliminary remark: Equality, and other values Speech with the above mentioned effects is likely to affect also other values such as public order as well as, more importantly for liberals, the value of equality. To stick with the example, racist hate speech has the potential to instigating civil agitation (violating interests in public order), and denigrating the worth of both its victims and the groups to which these belong in others’ and possibly their own eyes (violating their right to equal protection).
These are terrible effects, and one could argue that they are sufficient to restrict such speech. Nevertheless I will not focus on them in the following for three reasons. Firstly, they are not defining characteristics of ‘silencing’ speech which is the central subject of this paper; secondly, considerations in public order, morality and security and so on will not convince the liberal who attributes priority to free speech. Equality is insofar of greatest concern because it constitutes a defining value for many contemporary liberals; they are forced to choose between incommensurable commitments.
A more traditional liberal may assert the priority of liberty over equality and therefore not accept any such argument. To convince he who is the most vigorous opponent of restricting speech it must be shown that the value of freedom of speech itself can possibly be best served by restricting speech. Arguments to this purpose stand in the centre of the following discussion. ‘Positive’ Liberty MacKinnon’s argument constitutes exactly such kind of an argument for she claims, as explained above, that freedom of speech can, and ought to, be protected and enhanced by restricting men’s speech because the latter infringes women’s free.
Letting the empirical premises apart, traditional liberals object to the conceptual claim of the silencing argument that freedom of speech extends to include such ‘positive’ liberties. R. Dworkin, for example, criticises MacKinnon’s argument for it were “premised on an unacceptable proposition: that the right to free speech includes a right to circumstances that encourage one to speak, and a right that others grasp and respect what one means to say”.
He claims that the right to free speech is the right to a negative liberty, the freedom from interference by other agents and authorities. Yet, this dichotomy of two concepts of freedom does not appear helpful to me. As MacCullum’s critique of Berlin’s seminal lecture shows freedom is in fact a triadic relation, and all claims about freedom have the form of ‘An agent x is (is not) free from the constraint/interference y to do (not do, become, not become) goal z’.
What MacKinnon and Dworkin really disagree about, then, is what should (and should not) be counted as an inference to freedom of speech; put differently, they disagree about how broad the correct account of free speech ought to be. For MacKinnon free speech is obstructed if a speaker cannot be heard, cannot be comprehended or is not paid attention. To Dworkin, such obstacles are no constraints of freedom, for what really matters is that one be not hindered from articulating words and that the government may not regulate the content of what one expresses.
Before turning to the question of what kind of account of free speech appears most plausible and adequate let me consider a further argument in favour of limiting that does not rely on the notion of ‘positive’ liberty. Democratic theory of freedom, and the limitations of liberal discourse on free speech O. Fiss argues that the appropriate interpretation of freedom of speech (again in the context of the US constitution) is not the ‘libertarian’ theory that emphasises the individual’s right to self-expression, but the democratic theory according to which the freedom of speech has to be protected as a public freedom.
On this account free speech is essential for collective self-determination (rather than self-expression or self-actualisation) to enable the citizens to understand issues and arguments on all sides and thus to “pursue their ends fully and freely”6. In the context of the ‘silencing’ debate this implies that speech can be restricted in order to further a “worthy public end”: democracy.
Fiss’ deliberative conception of democracy requires that the speech of the less powerful is not drowned out or impaired by the speech of the powerful (the silencing dynamic), and therefore “sometimes we must lower the voices of some in order to hear the voices of others. ” The traditional liberal might object that even if state regulation might promote the speech rights of some groups it necessarily diminishes the speech rights of other groups and the state has no right to arbitrate between the interests of the various groups.
But this objection is of no avail. For while the concern here is the right to free speech in the sense of full and equal opportunity to participate in public debate, these claims are valued instrumentally in favour of the interests of the citizenry at large in “hearing a full and open debate on issues of public importance”. So the state tries not to arbitrate self-expressive interests, but “to establish essential preconditions for collective self-governance by making certain that all sides are represented to the public”, i. e. the value of democracy is invoked.
This, I would argue, should not be taken as a denial of individuals’ right to self-expression, but as a way to deal with certain limitations of the liberal discourse on free speech which B. Parekh points out concisely. (Most) liberal discourse reduced speech which is a “publicly orientated and interpersonal act, to expression, a subjectivist and personal act and [shifts] the focus from a shared public realm to the individual’s right or need to express himself.”
But a right to free expression entails, and is made possible by, a corresponding obligation on the listeners to refrain from interfering with it and to suffer patiently whatever hurt his utterances might cause them. Yet, advocates of the libertarian conception of freedom fail to explain why the listeners, in particular the victims of ‘silencing’ speech (and their sympathisers), should accept such an obligation, why the interest of the speaker should take priority over theirs.
The classical Millian-utilitarian argument that freedom of speech is essential for human progress is not available to them for the democratic theory is indeed based on it and substantiates it with a less elitist idea (democracy). Thus understood the democratic argument is a powerful reason for why silencing speech may be restricted to promote freedom of speech. Convincing the tenacious And yet, a fervent advocate of a libertarian idea of freedom of speech as ‘negative’ right to self-expression may still resist.
Dworkin as well criticises the attempt to expand the idea of negative liberty by characterising certain ideas as themselves ‘silencing’ ideas, insisting that “every idea must be allowed to be heard, even those whose consequence is that other ideas will be misunderstood or even not be spoken at all because those would-be speakers are not in control of their own public identities and therefore cannot be understood as they wish to be. These are bad consequences but they are not the same thing as depriving others of their negative liberty to speak.”
To refute such claims and convince ‘the unbelieving libertarian’, let me examine why, or rather what, it actually is that unites liberals in their valuation of freedom of speech. At base words (pictures, video…) are not in themselves valuable but they are the vehicle by which people communicate their thoughts and ideas to others. Therefore, “freedom of speech involves at base the liberty to communicate. It is the ideas and opinions that words are used to express that are the (either intrinsically or instrumentally) valuable things”, summarise Maitra and McGowan the foundation of any liberal advocacy of free speech.
They continue by specifying a helpful framework according to which any conception of freedom of speech must satisfy three minimal conditions to make a plausible claim about the value of speech (and not an implausible one valuing words intrinsically three minimal conditions). Free speech requires, then, at least minimal distribution, minimal comprehension, and minimal consideration. The opportunity to distribute words (and the like) to others is, quite obviously and accepted by Dworkin et al. , a necessary condition for being able to communicate our thoughts and ideas to them.
But it is not sufficient because the audience may not comprehend the meaning of the words (and ‘speech’ would lack any normatively significant sense), so “free speech requires that were a speaker to produce the appropriate words, and were an audience to want to hear what the speaker has to say, there is no agent (individual, group, or institutional) whose actions systematically prevent the audience from comprehending the intended meaning of the speaker’s words. ”1213 Finally, everyone (valuing speech) will plausibly agree that some kinds of interference with consideration constitute violations of freedom of speech.
Our interest in communication is that our words have some minimal, non-negligible chance of influencing the listeners and if this consideration is interfered with then speech is rendered purposeless. Mill himself, the greatest liberal authority probably, wrote that “truth has no chance but in proportion as every side of it, every opinion which embodies even a fraction of the truth, not only finds advocates, but is so advocated as to be listened to”, and it is obvious that with ‘listened to’ he implied some minimal consideration.
To be valuable the ideas (meaning of words) expressed must not only be comprehended but also considered. Therefore, minimal consideration is a necessary precondition for any Millian justification of free speech for it is valued as a means to further the progressive interests of mankind which requires a dialectic confrontation of opinions and ideas and that audiences must (reasonably often) also consider the expressive value contained in the speaker’s words. The question is how much consideration is required.
This essay is not meant to argue for one exact specification of such a threshold. But even a minimalist condition according to which free speech requires that “agents refrain from acting in ways that systematically prevent the speech of another from being attended to or considered” could plausibly be violated through speech. Returning to MacCullum’s theory of freedom as a triadic relation Thus it becomes once more clear that the distinction between different accounts of free speech is not one between ‘positive’ and ‘negative’ liberty, but between what counts as constraint.
And every plausible conception ought to accept (at least) violations of the minimum requirements explained above as constraints, y, on freedom of speech because they prevent (distribution) or eviscerate (comprehension and consideration) speech and hence deprive it of its significance (communication of ideas). Now everyone must concede that speech itself could plausibly violate each of these three dimensions of free speech and thus deprive others (to a smaller or greater degree) of their freedom.
Without wanting to dive deep into the empirical field, Prof. C. Lawrence, to give one example, explains that “When the Klan burns a cross on the lawn of a Black person…a threat [is] made in the context of a history of lynching [and] beatings, [such that the] Black person on whose lawn the Klan has burned a cross, is threatened and silenced by a credible connection between racist hate speech and racist violence.
As the preceding discussion has shown, speech can silence in the sense that it amounts to a violation of freedom of speech even on the narrowest (still plausible) conception of this fundamental liberal value. Hence, even – one might also say in particular – rigorous advocates of the right to freedom of speech ought to advocate regulating speech under certain conditions. Denying this would amount to no longer adhering to the value of free speech but to drift into anarchist terrain.
Notwithstanding the restriction to ‘under certain conditions’ is a very important one, since certainly not in every case where speech silences it is appropriate to intervene. Instead, an analysis of the costs and benefits of such a policy ought to decide. Which considerations, and accorded with which weight, appear in the equation depends on the exact conception of free speech (respectively requirements) and whether the commitment to free speech is taken to be absolute or whether other considerations such as equality are also accounted for (as potential gains).
If the commitment to free speech is taken as absolute then the tradeoff is between the loss due to the constrained interest of the (e. g. hate) speaker in being able to distribute words on the one hand, and the benefit through promoting the interest of the otherwise silenced would-be speaker in being able to distribute words and have them comprehended and considered. If the net balance is positive then even in this ‘minimalist’ case the decision ought to be a restriction of the ‘silencing’ speech – in favour of the value of freedom of speech.
The broader the account of free speech (more potential constraints) and the more values such as equality but also a ‘public freedom of speech’ are taken into account the more likely a restriction will be the outcome. So to be clear, I do not advocate a ‘wholesale’ regulation of hate speech and similar at all; the freedom of these actors is valuable and we therefore have to be careful. But under certain conditions speech not only silences but its effects are indeed such that it ought to be restricted.