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Stanford Encyclopedia of Philosophy) Stanford Encyclopedia of Philosophy Freedom of Speech 03/05/2017 Freedom of Speech (Stanford Encyclopedia of Philosophy) Stanford Encyclopedia of Philosophy Freedom of Speech First published Fri Nov 29, 2002; substantive revision Mon May 1, 2017 This entry explores the topic of free speech. It starts with a general discussion of freedom in relation to speech and then moves on to examine one of the first and best defenses of free speech, based on the harm principle. This provides a useful starting point for further digressions on the subject. The discussion moves on from the harm principle to assess the argument that speech can be limited because it causes offense rather than direct harm. I then examine arguments that suggest speech can be limited for reasons of democratic equality. I finish with an examination of paternalistic and moralistic reasons against protecting speech, and a reassessment of the harm principle. 1. Introduction: Boundaries of the Debate 2. The Harm Principle and Free Speech 2.1 John Stuart Mill's Harm Principle 2.2 Mill's Harm Principle and Pornography 2.3 Mill's Harm Principle and Hate Speech 2.4 Responses to the Harm Principle 3. The Offense Principle and Free Speech 3.1 Joel Feinberg's Offense Principle 3.2 Pornography and the Offense Principle 3.3 Hate Speech and the Offense Principle 4. Democracy and Free Speech 4.1 Democratic Citizenship and Pornography 4.2 Democratic Citizenship and Hate Speech 4.3 Paternalistic Justification for Limiting Speech 5. Back to the Harm Principle 6. Conclusion Bibliography Academic Tools Other Internet Resources Related Entries 1. Introduction: Boundaries of the Debate The topic of free speech is one of the most contentious issues in liberal societies. If liberty of expression 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. It 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 discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because it 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 (in the sense of unlimited 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 limited. One does not have to fully agree with Fish when he says , “free speech in short, is not an independent value but a political prize” (1994,102) but it is the case that no society has existed where speech has not been limited to some extent. Haworth (1998) makes a similar point when he suggests that a right to freedom of speech is not something we have, not something we own, in the same way as we possess arms and legs. Alexander and Horton (1984) agree. They note that “speech” encapsulates many different activities: speaking, writing, singing, acting, burning flags, yelling on the street corner, advertising, threats, slander and https://plato.stanford.edu/entries/freedom­speech/ 1/18 03/05/2017 Freedom of Speech (Stanford Encyclopedia of Philosophy) so on. One reason for thinking that speech is not special simpiciter is that some of these forms of communication are more important than others and hence require different levels of protection. For example, the freedom to criticize a government is generally thought to be more important than the freedom of an artist to offend her audience. If two speech acts clash (when yelling prevents a political speech) a decision has to be made to prioritize one over the other, which means that there can be no unlimited right to free speech. For example, Alexander and Horton (1984) claim that arguments defending speech on democratic grounds have many parts. One is a claim that the public needs a great deal of information in order to make informed decisions. Another is that because government is the servant of the people, it should not be allowed to censor them. Such arguments show that one of the main reasons for justifying free speech (political speech) is important, not for its own sake but because it allows us to exercise another important value (democracy). Whatever reasons we offer to protect speech can also be used to show why some speech is not special. If speech is defended because it promotes autonomy, we no longer have grounds for protecting speech acts that undermine this value. If our defence of speech is that it is crucial to a well­functioning democracy, we have no reason to defend speech that is irrelevant to, or undermines, this goal. And if we agree with John Stuart Mill (1978) that speech should be protected because it leads to the truth, there seems no reason to protect the speech of anti­vaccers or creationists. Speech is important because we are socially situated and it makes little sense to say that Robinson Crusoe has a right to free speech. It only becomes necessary to talk of such a right within a social setting, and appeals to an abstract and absolute right to free speech hinder rather than help the debate. At a minimum, speech will have to be limited for the sake of order. If we all speak at once, we end up with an incoherent noise. Without some rules and procedures we cannot have a conversation at all and consequently speech has to be limited by protocols of basic civility. It is true that many human rights documents give a prominent place to the right to speech and conscience, but such documents also place limits on what can be said because of the harm and offense that unlimited speech can cause, (I will discuss this in more detail later). Outside of the United States of America speech does not tend to have a specially protected status and it has to compete with other rights claims for our allegiance. John Stuart Mill, one of the great defenders of free speech, summarized these points in On Liberty, where he suggests that a struggle always takes place between the competing demands of authority and liberty. He claimed that we cannot have the latter without the former: All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed—by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. (1978, 5) 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 other important ideals such as privacy, security, democratic equality and the prevention of harm and there is nothing inherent to speech that suggests it must always win out in competition with these values. Speech is part of a package deal of social goods: “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” (Fish, 1994, 104). In this essay, I will examine some conceptions of the good that are deemed to be acceptable limitations on speech. I will start with the harm principle and then move on to other more encompassing arguments for limiting speech. Before we do this, however, the reader might wish to disagree with the above claims and warn of the dangers of the “slippery slope.” As Frederick Schauer (1985) has demonstrated, slippery slope arguments make the claim that a current acceptable change (he calls this the instant case) to the status quo regarding speech will lead to some intolerable future state of affairs (what he calls the danger case) once the instant case prohibiting speech is introduced. The assumption is that the instant case is acceptable; otherwise it would be critiqued in its own right. The complaint is that a change from the status quo to the instant case will lead to unwanted future limitations on speech and should be avoided (even if a change to the instant case would be immediately desirable). The slippery slope argument has to make a clear distinction between the instant and the danger case. If the former was part of the latter then it is not a slippery slope argument but simply an assertion about the unwarranted breadth of the instant case. The claim being made is that a change to an acceptable instant case that is distinct from the danger case should nevertheless be prohibited because a change from the status quo to the instant case will necessarily transport us to the danger case. https://plato.stanford.edu/entries/freedom­speech/ 2/18 03/05/2017 Freedom of Speech (Stanford Encyclopedia of Philosophy) As Schuer says this is not very compelling because it needs to be demonstrated, rather than merely stated, that the move from the status quo is so much more likely to lead to the danger case. Part of the problem is that slippery slope arguments are often presented in a way that suggests we can be on or off the slope. In fact, no such choice exists: we are necessarily on the slope whether we like it or not, and the task is always to decide how far up or down we choose to go, not whether we should step off the slope altogether.
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