Recently on the comments’ section of Ovi we were once again visited with a bad mannered boorishness (at times under pseudonyms) as an instrument of debate and an expression of dissenting opinion. Somehow it justified by the fact that Ovi is a magazine of opinion and therefore all modes of expressions are to be considered legitimate. This is a logical fallacy and a non sequitur. We heard “enlightened” comments such as “shut up,” and other more vulgar unmentionable epithets and attacks ad hominem having precious little to do with the issue at hand. Déjà vu indeed! Birds of a feather tend to flock together. Perhaps it may be profitable to revisit once again this contentious theme on which I posted a piece last year, if the editors of the magazine, that is, think it profitable and helpful in moderating the unfortunate tone of some unwise temper tantrums passing as a dialogue of sort.

In 1994 the philosopher of law Stanley Fish published a provocative book titled There is No Such Thing as Free Speech in which he outlined the topic of free speech as one of the most contentious issues in liberal societies.

Fish asserts that if the liberty to express oneself is not highly valued, as has often been the case, there is no problem: freedom of expression is simply curtailed in favor of other values. Free speech becomes a volatile issue when it is highly valued because only then do the limitations placed upon it become controversial. The first thing to note in any sensible but passionate discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because speech always takes place within a context of competing values. In this sense, Stanley Fish is correct when he says that there is no such thing as free speech. Free speech is simply a useful term to focus our attention on a particular form of human interaction and the phrase is not meant to suggest that speech should never be interfered with. As Fish puts it, “free speech in short, is not an independent value but a political prize.”  No society has yet existed where speech has not been limited to some extent. As John Stuart Mill argued in On Liberty, a struggle always takes place between the competing demands of liberty and authority, and we cannot have the latter without the former.

The task, therefore, is not to argue for an unlimited domain of free speech; such a concept cannot be defended. Instead, we need to decide how much value we place on speech in relation to the value we place on other important ideals. As Fish puts it: “speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good.” What are those other important ideals?

Fish informs us that John Stuart Mill presented one of the first, and still perhaps the most famous liberal defense of free speech. In the footnote at the beginning of Chapter II of On Liberty, Mill makes a very bold statement: "If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” This indeed is a very strong defense of free speech; Mill tells us that any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons. But Mill also suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is “one very simple principle,” now usually referred to as the Harm Principle, which states that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”

The limits on free speech will be very narrow because it is difficult to support the claim that most speech causes harm to the rights of others. This is the position staked out by Mill in the first two chapters of On Liberty and it is hard to imagine a more liberal position. Liberals find it very difficult to defend free speech once it can be demonstrated that its practice does actually invade the rights of others.

The next logical question is: what types of speech, if any, cause harm?” Once we can answer this question, we have found the appropriate limits to free expression. The example Mill uses is in reference to corn dealers; he suggests that it is acceptable to claim that corn dealers starve the poor if such a view is expressed through the medium of the printed page. It is not acceptable to express the same view to an angry mob, ready to explode, that has gathered outside the house of the corn dealer. The difference between the two is that the latter is an expression “such as to constitute…a positive instigation to some mischievous act,” namely, to place the rights, and possibly the life, of the corn dealer in danger. Mill distinguishes between legitimate and illegitimate harm, and it is only when speech causes a direct and clear violation of rights that it can be limited. The fact that Mill does not count accusations of starving the poor as causing legitimate harm to the rights of corn dealers suggests he wished to apply the harm principle sparingly. Other examples where the harm principle may apply include libel laws, blackmail, advertising blatant untruths about commercial products, advertising dangerous products to children (e.g. cigarettes), and securing truth in contracts. In most of these cases, it is possible to make an argument that harm has been committed and that rights have been violated.

There are other instances when the harm principle has been invoked but where it is more difficult to demonstrate that rights have been violated. Perhaps the most obvious example of this is the debate over pornography. In recent times the cause against pornography has been joined by some feminists who have maintained that pornography degrades, endangers, and harms the lives of women. This argument, to have force, must distinguish between pornography as a general class of material (aimed at sexual arousal) and pornography that causes harm by depicting acts that violently abused women. If it can be demonstrated that this latter material significantly increases the risk that men will commit acts of physical violence against women, the harm principle can legitimately be invoked.

When pornography involves young children, most people will accept that it should be prohibited because of the harm that is being done to persons under the age of consent. It has proved much more difficult to make the same claim for consenting adults. Remember that Mill's formulation of the harm principle suggests only speech that directly harms the rights of others in an illegitimate manner should be banned.

One of the most contentious aspects of the issue of the limits of free speech is the offensiveness of hate speech. Most liberal democracies have limitations on hate speech, but can they be justified by the harm principle as formulated by Mill? One would have to show that such speech violated rights, directly and in the first instance. A famous example of hate speech is the Nazi march through Skokie, Illinois. In fact, the intention was not to engage in political speech at all, but simply to march through a predominantly Jewish community dressed in storm trooper uniforms and wearing swastikas (although the Illinois Supreme Court interpreted the wearing of swastikas as “symbolic political speech”). It is clear that most people, especially those who lived in Skokie, were outraged and offended by the march, but were they harmed? There was no plan to cause physical injury and the marchers did not intend to damage property.

There are two basic responses to the harm principle as a means of limiting speech. One is that it is too narrow; the other is that it is too broad. This latter view is not often expressed because most people think that free speech should be limited if it does cause illegitimate harm. If we want to limit speech because of harm then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because it is aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries.

Some consider religious speech as even worse than political discourse because it too is hateful, useless, dishonest, and ferments war, bigotry and fundamentalism. It also creates bad self-image and feelings of guilt that can haunt persons throughout their lives. Pornography and hate speech cause nowhere near as much harm as political and religious speech. In point of fact, any religion worth its salt, one that is not a cult of sort, leaves the individual free to express his/her opinions freely. The harm principle would actually allow religious and political speech for the same reasons that it allows pornography and hate speech, namely that it is not possible to demonstrate that such speech does cause direct harm to rights. It is doubtful that Mill would support using his arguments about harm to ban political and religious speech.

Others opine that the harm principle does not reach far enough, that the harm principle cannot shoulder all of the work necessary for a principle of free speech. In some instances we may need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive. Such a principle is difficult to apply because many people take offense as the result of an overly sensitive disposition, or worse, because of bigotry and unjustified prejudice. At other times some people can be deeply offended by statements that others find mildly amusing. The furore over the Danish cartoons brings this starkly to the fore. Despite the difficulty of applying a standard of this kind, something like the offense principle operates widely in liberal democracies where citizens are penalized for a variety of activities, including speech that would escape prosecution under the harm principle. Wandering around the local shopping mall naked, or engaging in sexual acts in public places are two obvious examples.

There is little doubt in most people’s minds that hate speech causes profound and personal offense. The discomfort that is caused to those who are the object of such attacks cannot easily be shrugged off. As in the case of violent pornography, the offense that is caused by the march through Skokie cannot be avoided simply by staying off the streets because the offense is taken over the bare knowledge that the march is taking place. The intensity of the offense is particularly acute with hate speech because it is aimed at a relatively small and specific audience. The motivations of the speakers in the Skokie example seemed to be to incite fear and hatred and to directly insult the members of the community with Nazi symbols. When fighting words are used to provoke people who are prevented by law from using a fighting response, the offense is profound enough to allow for prohibition. It is clear, therefore, that the crucial component of the offense principle is the avoidability of the offensive material. For the argument to be consistent, it must follow that many forms of hate speech should still be allowed if the offense is easily avoidable. Nazis can still meet in private places, or even in public ones that are easily bypassed. Advertisements for such meetings can be edited (because they are less easy to avoid) but should not be banned.

Very few liberals take the Millian view that only speech causing direct harm should be prohibited; most support some form of the offense principle. Some are willing to extend the realm of state interference further and argue that hate speech should be banned even if it does not cause harm or unavoidable offense. The reason it should be banned is that it is inconsistent with the underlying values of liberal democracy to brand some citizens as inferior to others on the grounds of race or sexual orientation. The same applies to pornography; it should be prevented because it is incompatible with democratic citizenship to portray women as sexual objects, who are often violently mistreated.

To argue the case above, one has to dilute one's support for freedom of expression in favor of other principles, such as equal respect for all citizens. This is a sensible approach according to Stanley Fish. He suggests that the task we face is not to arrive at hard and fast principles that govern all speech. Instead, we have to find a workable compromise that gives due weight to a variety of values. Supporters of this view will tend to remind us that when we are discussing free speech, we are not dealing with speech in isolation; what we are doing is comparing free speech with some other good. For instance, we have to decide whether it is better to place a higher value on speech than on the value of privacy, security, equality, or the prevention of harm. Stanley Fish suggests that we need to find a balance in which “we must consider in every case what is at stake and what are the risks and gains of alternative courses of action.” Is speech promoting or undermining our basic values? “If you don't ask this question, or some version of it, but just say that speech is speech and that's it, you are mystifying—presenting as an arbitrary and untheorized fiat—a policy that will seem whimsical or worse to those whose interests it harms or dismisses”

In other words, what Fish is suggesting is that there have to be reasons behind the argument to allow speech; we cannot simply say that the First Amendment says it is so, therefore it must be so. The task is not to come up with a principle that always favors expression, but rather, to decide what is good speech and what is bad speech, in other words, eliminate the abuses of free speech. A good policy writes Fish, “will not assume that the only relevant sphere of action is the head and larynx of the individual speaker”  Is it more in keeping with the values of a democratic society, in which every person is deemed equal, to allow or prohibit speech that singles out specific individuals and groups as less than equal? The answer, according to Fish, cannot be settled by simply appealing to a pre-ordained ideal of absolute free speech, because this is a principle that is itself in need of defense. Fish's answer is that, “it depends. I am not saying that First Amendment principles are inherently bad (they are inherently nothing), only that they are not always the appropriate reference point for situations involving the production of speech” But, all things considered, “I am persuaded that at the present moment, right now, the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope towards tyranny. This is a judgment for which I can offer reasons but no guarantees.”

Hence, the boundaries of free speech cannot be set in stone by philosophical principles. It is the world of politics that decides what we can and cannot say, guided but not hidebound by the world of abstract philosophy. Fish suggests that free speech is about political victories and defeats. The very guidelines for marking off protected from unprotected speech are the result of this battle rather than truths in their own right: “No such thing as free (non-ideologically constrained) speech; no such thing as a public forum purged of ideological pressures of exclusion.”  Speech always takes place in an environment of convictions, assumptions, and perceptions i.e., within the confines of a structured world. The thing to do, according to Fish, is get out there and argue for one's position.

We should ask three questions according to Fish: “given that it is speech, what does it do, do we want it to be done, and is more to be gained or lost by moving to curtail it?”  He suggests that the answers we arrive at will vary according to the context. Free speech will be more limited in the military, where the underlying value is hierarchy and authority, than it will be at a university where one of the main values is the expression of ideas. Even on campus, there will be different levels of appropriate speech. Spouting off at the fountain in the center of campus should be less regulated than what a professor can say during a lecture. It might well be acceptable for me to spend an hour of my time explaining to passers-by why Manchester United is such a great football team but it would be completely inappropriate (and open to censure) to do the same thing when I am supposed to be giving a lecture on Thomas Hobbes. Fish contends that a campus is not simply a “free speech forum but a workplace where people have contractual obligations, assigned duties, pedagogical and administrative responsibilities.”  Almost all places in which we interact are governed by underlying values and hence speech will have to fit in with these principles: “regulation of free speech is a defining feature of everyday life” writes Fish. Thinking of speech in this way removes a lot of the mystique. Whether we should ban hate speech is just another problem along the lines of whether we should allow university professors to talk about football in lectures.

J.S. Mill does not seem to support the imposition of legal penalties unless they are sanctioned by the harm principle. As one would expect, Mill also seems to be worried by the use of social pressure as a means of limiting speech. Chapter III of On Liberty is an incredible assault on social censorship, expressed through the tyranny of the majority, because it produces stunted, pinched, hidebound and withered individuals: “everyone lives as under the eye of a hostile and dreaded censorship…[i]t does not occur to them to have any inclination except what is customary.” He continues: “the general tendency of things throughout the world is to render mediocrity the ascendant power among mankind…at present individuals are lost in the crowd…the only power deserving the name is that of masses…[i]t does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be the more and more pronounced individuality of those who stand on the higher eminences of thought.” With these comments, and many of a similar ilk, Mill demonstrates his distaste of the apathetic, fickle, tedious, frightened and dangerous majority.

It is quite a surprise, therefore, to find that he also seems to embrace a fairly encompassing offense principle when the sanction does involve social disapprobation: “Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited.” Similarly, he states that “The liberty of the individual must be thus far limited; he must not make himself a nuisance” In the latter parts of On Liberty Mill also suggests that distasteful persons can be held in contempt, that we can avoid such persons (as long as we do not parade it), that we can warn others against the persons, and that we can persuade, cajole and remonstrate with those we deem offensive. These actions are legitimate as the free expression of those who happen to be offended as long as they are done as a spontaneous response to the person's faults and not as a form of punishment.

But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and are other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice, envy or resentment necessarily violates the rights of others. The only way that Mill can make such claims is by expanding his argument to include an offense principle and hence give up on the harm principle as the only legitimate grounds for interference with behavior.

Liberals tend to defend freedom generally, and free speech in particular, for a variety of reasons beyond the harm principle; speech fosters authenticity, genius, creativity, individuality and human flourishing. Mill tells us specifically that if we ban speech the silenced opinion may be true, or contain a portion of the truth, and that unchallenged opinions become mere prejudices and dead dogmas that are inherited rather than adopted. These are empirical claims that require evidence. Is it likely that we enhance the cause of truth by allowing hate speech or violent and degrading forms of pornography?

It is worth pondering the relationship between speech and truth. If we had a graph where one axis was truth and the other was free speech, would we get one extra unit of truth for every extra unit of free speech? How can such a thing even be measured? Some argue that speech can be limited for the sake of other liberal values, particularly the concern for democratic equality; the claim is not that speech should always lose out when it clashes with other fundamental principles that underpin modern liberal democracies, but that it should not be automatically privileged. In other words, priorities ought to be established between all the ideals of a democratic society. What, in my opinion, ought to have been more emphasized by Fish is the concept of inalienable rights under which free speech falls. In other words, free speech together with the other rights that are intrinsic to human nature are not to be considered as a mere political trophy granted by the State or earned by a citizen but something with which a human being is born. Interestingly enough inalienable rights are mentioned in the Declaration of Independence but hypocritically not applied to millions of slaves. But that is another issue.    

Undoubtedly these philosophical musings on the limits of free speech will not exhaust all the perplexities issuing from the discussion currently going on in Ovi at this moment, and surely there will be other points of view, but perhaps they will suggest a less personal ad hominem approach focused more on the will to truth and less on the will to power. For as the ancient Greeks have well taught us, the former leads to wisdom, the latter only to self-deception and acrimony.