volume 20, no. 34 I. Introduction november 2020 Much recent philosophical work on free speech proceeds in the fol- lowing ostensibly plausible way. Rights, it is said, protect weighty interests (Raz 1986). Therefore, if there is a right to free expression, then there must be some weighty interest(s) that it protects. More- over, reasoning about the best means of protecting and advancing Freedom of Expression and these interests determines a right’s normative limits. For example: if we have a right to free expression because it aids us in the search for truth (as J. S. Mill suggests), then, when limiting speech helps us in our search, we ought to impose the relevant limitations (Leiter 2016). If we the Liberalism of Fear: have a right to freedom of expression because it facilitates democratic deliberation, then, when silencing speech does so better, silencing is justified (Schauer 1982). If we have a right to free expression because A Defense of the Darker Mill such a right promotes the perfection of our capacities, then, when pre- venting some speech does so better, we ought to prevent speech just that far (Brink 2001: 149−172). If a right to free expression protects us against oppression, then our speech can be regulated insofar as it con- stitutes oppression (McGowan 2014). And so on. As Stanley Fish puts the general point, speech “is always produced within the precincts of some conception of the good to which it must yield in the event of conflict” (1994). Or as Erwin Chemerinsky writes, courts must inevitably decide “what speech is protected, under what circumstances, and when and how the government may regulate” (2017: 1237−1238). He continues, “such an analysis is possible only J. P. Messina with reference to the goals that freedom of speech is meant to achieve” The University of New Orleans (ibid.: 1238). Philosophers sometimes suggest that reasoning this way demon- strates the central problem with the United States legal context, in which the right to free speech is secured through laissez-faire policies which prohibit state restriction of speech broadly. They observe, for example, that the first amendment protects much speech that is mis- © 2020 J. P. Messina leading and harmful in spite of the fact that when the right to free This work is licensed under a Creative Commons speech is protected this far, its protection fails to optimally advance Attribution-NonCommercial-NoDerivatives 3.0 License. the goals it is meant to advance. Other countries, they say, achieve a
j. p. messina Freedom of Expression and the Liberalism of Fear
better fit between freedom of expression and the values that justify it is as important to protect persons’ suitably curtailed liberty as it is to by rejecting laissez-faire when it is likely to frustrate these values. For empower governments to limit liberty when it undermines the goals these scholars, the United States’ exceptionalism in the domain of free that justify it. On the second tradition, rights exist not because they’re speech jurisprudence is not just regrettable; it is practically irrational. optimal ways of realizing good, flourishing lives, but because history However popular, I think this is the wrong way of looking at things. demonstrates their importance for avoiding tyrannical interference It is wrong because it treats rights primarily as tools for realizing goods. with lives lived by the lights of those living them. Judith Shklar called But there is a long history of protecting liberal rights, not because they this latter school of thought the liberalism of fear and grounded it in protect and advance our positive interests (although they do), but the thought of Thomas Hobbes. But it might also, I think, be grounded because recorded history repeatedly tells the story of persons gain- in an appreciation of J. S. Mill’s pessimistic or “dark” conception of hu- ing power primarily to impose their vision of the good life upon non- man nature.3 consenting others.1 Those empowered to interfere have guns and the Below, I argue that recovering this darker Mill is crucial for answer- more we arm them with justifications for turning them on those they ing recent Millian criticisms of U.S. free speech exceptionalism (here- are supposed to protect, the sooner we find ourselves on the wrong after FSE).4 The paper begins (§ II) by briefly reconstructing three ar- end of the barrel. We support rights against interference not to realize guments against FSE. Next, I spend some time with the Introduction certain goods, but to protect against certain evils.2 to On Liberty and the Principles of Political Economy, toward the end of These approaches represent, in fact, two distinct traditions of lib- recovering Mill’s darker side (§ III). Section IV revisits the arguments eralism. The first treats the specification of liberal rights as crucially against FSE and argues that attention to the darker Mill yields a com- important because, by striking just the right balance, we can realize all pelling reply. Section V concludes by suggesting various respects in sorts of good things: creativity, community, self-expression, autonomy, which defenders of FSE might better respond to its real costs. mutual respect, accommodation for difference, etc. On this view, it
1. Fred Schauer argues that freedom of speech is not merely an instantiation of the general right to liberty (1982: ch. 1; see also UPMS: 11). This appears to 3. I join Zaibert (2011) in associating Mill with this liberal tradition. be because we value speech more than we might predict if it were merely an 4. My argument thus embraces the sort of minimalism that Joshua Cohen application of a more general right. But I don’t think this is correct. We can, as dismisses in his famous article on speech. For Cohen, “the common thread I argue below, explain the special attention we give to speech not by focusing running through the several variants of minimalism is that the defense is to on the fact that it’s particularly valuable, but by focusing on the fact that there proceed without recourse to the thesis that expression has substantial value” are particular reasons for others to want to interfere here. Schauer too quickly (Cohen 1993: 210). Rather than pursuing this route, minimalists on Cohen’s dismisses this possibility. view rest substantial weight on “the factual assumption that regulations of 2. My objection here is thus not that dominant accounts are teleological, but that expression” commonly involve the mere “legislative imposition of external they risk forsaking the real (negative) teleological justifications for rights to preferences” (ibid.). But for Cohen, minimalists come in two varieties. First, free speech (e.g., fear of unprincipled government repression) for (positive) there are “no-cost” minimalists — theorists who deny that expressive activity grounds that open up space precisely for such repression. Of course, one can impose costs (ibid.: 218). Cohen readily dispenses with such views, and need not accept a teleological grounding of rights. Indeed, my own favored it is no part of the argument here that expression must be cost-free. Second, approach to rights is ultimately closer to the non-teleological view expressed however, there are minimalists who admit that speech can be costly, but sim- by Ripstein (2006). Still, the dominant views with respect to rights to free ply refuse to defend the freedom of expression on the grounds of its benefi- expression are teleological, and I attempt here to engage with them on their cial effects. Although he seems to acknowledge the existence of such views, own terms. Thanks to an anonymous reader for pressing me to address this Cohen has nothing to say against them. His silence on this point is, I think, a point. considerable defect.
philosophers’ imprint – 2 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
II. Against Free Speech Exceptionalism? the truth about matters of societal importance”, etc., and restricts the FSE refers to the cluster of institutional norms that makes the United relevant sort of value such speech might have to epistemic or demo- States unique with regard to the protection of speech. Together, these cratic value (ibid.). Even restricting weighty, constitutionally guaran- norms imply that citizens’ expressive acts are not to be interfered teed speech of this kind risks little loss of value, he argues, and the with — even when they are hateful or obscene. True, some of what is gains from restriction are potentially enormous. For protecting all intuitively speech (the production of sounds through the vocal cords) speech equally does little more than realize a world in which reason is or expression constitutes action. In employment contexts, uttering (or drowned out by nonsense. writing) the words “you’re fired” constitutes an act — firing — that is To illustrate, Leiter draws on the example of courtroom norms. governed by norms of distributive justice that do not govern the utter- While such norms are specifically designed to conduce to truth, they ance in other contexts (e.g., in a novel’s dialogue) (McGowan 2009). could not be further from embracing the expressive laissez-faire that Making a credible threat on another person’s life is possible only by FSE embraces. To the degree that we find these more restrictive norms means of language. Supporters of FSE need not and should not deny well-adjusted to the goal of ensuring that the jury reaches the right as much. They must hold only that legal interference with expressive decision, we ought to be skeptical that FSE promotes democratic and acts aimed merely at communicating or representing states of affairs epistemic values in the public sphere (ibid.: 410). Leiter’s argument is (real or imagined), ideas, feelings, judgments, ideals, or recommenda- as follows: 5 tions is not to be tolerated. Below, I introduce three of the most prom- (1) We should accept a free speech regime only if it pro- inent objections to FSE. I argue that each calls for departures from FSE motes epistemic value or democratic self-government.6 on the grounds that the latter does not optimally advance the positive interests free speech rights are supposed to advance. In other words, (2) FSE does not plausibly promote these values better 7 each embraces the strategy I sketch in the introduction. Then, I show than a regime of regulation (Leiter 2016: 417). how abandoning this strategy reframes the objections while allowing (3) Therefore, we ought not accept FSE. FSE to stand. It should be clear that this argument follows the model laid out in the introduction. Premise (1) articulates a weighty interest that the right A. The Objection from Cacophony In a recent law review article, Brian Leiter argues that if much non- 6. Leiter is skeptical of other grounds of speech protections. He is skeptical of mundane speech were suppressed, “little of actual value would be lost autonomy-based grounds because “neither speakers nor listeners are actu- ally ‘autonomous’ … they are, instead, mostly artefacts of social, economic, to the world” (2016: 408). Leiter’s focus is restricted to speech that and psychological forces beyond their control, mere vessels through which concerns matters of “political and moral urgency, speech that purports the various prejudices of their communities or their personal histories pass” (2016: 423). While he embraces eudaemonic grounds of speech protection, to be of aesthetic value, speech that purports to help us understand these, like the epistemic grounds, are only contingently related to protection of speech. Any “eudaemonic interests in expressing ourselves have to be bal- anced against the costs of bad and worthless and harmful speech, such as 5. In this, FSE follows recent U.S. first amendment jurisprudence. However, in those attendant upon our ‘brave new’ cyber-world of 24-hour often irrespon- rejecting as irrelevant any distinction between low-value and high-value sible, dishonest and twisted invective” (ibid: 427). speech, it is more radical still. Whereas U.S. constitutional law does not pro- tect libel, obscenity, and other worthless speech (Brink 2013: 164), propo- 7. For Leiter, it’s at least true that the relationship between protecting speech nents of FSE believe this to be mistaken. and promoting these values is contingent.
philosophers’ imprint – 3 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
to free speech is supposed to protect and advance, and conditions the (1) We should accept a free speech regime only if doing so rationality of a free speech regime on its advancement. Premise (2) realizes the interest in communicative freedom equally is a plausible empirical claim, supported by Leiter’s observations that for all. “much unmediated non-mundane speech” has “little epistemic value”, (2) FSE does not realize the interest in communicative often amounting to little more than the epistemically costly “endless freedom equally for all. repetition of silly opinions” (ibid.: 428). He thus rejects FSE. As will 9 become clear by the end, the problem lies in the first premise. (3) Therefore, we should not accept FSE. The first premise conditions the acceptance of a free speech regime B. The Objection from Silencing and Unequal Power on its equally advancing a general interest in free communication, an Whereas the first objection to FSE picks out an independent good that interest that seems at the heart of the right to free speech. The second free speech is supposed to advance and notes that sometimes restric- premise can be construed as a conceptual or an empirical claim — and tions advance the goal better than their absence, the second grants on either construal, proponents have successfully motivated its plau- that we may have an interest in free speech itself. Following Catherine sibility. Modus tollens yields the conclusion. Again, I will eventually MacKinnon (1987), Mary Kate McGowan, Alexandra Adelman, Sara show that the problem lies in the first premise. For now, it is enough Helmers, and Jacqueline Stolzenberg argue that, minimally, a free to see that the argument is valid, and that it, too, employs the standard speech principle is supposed to protect citizens’ interest in communi- strategy, albeit in a particularly innovative way. The reasons to protect 8 cating freely (McGowan et al. 2011). The problem is that our interests free speech determine also the limits of protection. If the interests the in free communication can conflict. Protecting the interests to speak of free speech principle is designed to protect can be better advanced by some (e.g., pornographers, racists) involves effectively denying others departing from FSE, then more regulation is (at least pro tanto) called (women, racial minorities) the effective ability to communicate. For for. some speech, by its very nature, silences. As they put the point:
If pornography silences women (and if silencing violates 9. A somewhat different version of this argument observes that neutrally pro- the free speech right), then the very free speech reasons tecting the rights to speak of the weak and the powerful together in effect en- sures that power asymmetries will reproduce themselves through the politi- for protecting pornography also appear to afford reasons cal system (Marcuse 1969, MacKinnon 1987). Take, for example, the problem to regulate it. In this way, the silencing argument turns of climate change. It is well-known that popular opinion radically departs the free speech discussion … on its head. (ibid.: 133) from expert opinion concerning the question of whether human actions have contributed to the warming of the earth. But, as Catriona McKinnon notes, this is likely due in part to the proliferation of misinformation on the part of Since it would be hard to deny that protecting free speech is to protect “an established international network of well-funded organizations devoted the interest in speaking freely, this is an especially troubling charge. to organized climate change denial” (McKinnon 2016). In working to raise In steps, the argument goes like this: doubts about the surety of climate research, these powerful organizations can often drown out more informed scientific opinion and exert undue influence on the minds and votes of citizens. Thus, as Marcuse puts it, even if tolera- tion for speech is a sensible goal of a free society, in circumstances like ours, where powerful voices prevail, “the realization of the objective of tolerance [calls] for intolerance toward prevailing policies, attitudes, opinions” (1969: 8. See also Langton 1993; for a critique, see Jacobson 1995. 81).
philosophers’ imprint – 4 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
C. The Objection from Harm two arguments, the problem I will be pressing is the falsity of the argu- A third Millian argument appeals directly to the interest that grounds ment’s first premise, which commits to the standard strategy. Mill’s harm principle, namely an interest in being free from harm. It goes roughly this way: *** Proponents of the above arguments often explicitly claim Millian cre- (1) We should accept a free speech regime only if it real- dentials, arguing that a more consistent Mill would have rejected FSE izes freedom from significant harms. for the reasons they cite. For Mill’s defense of a negative right to free- (2) FSE does not realize freedom from significant harms. dom of expression appeals to our weighty interests in representative government, discovering the truth, and developing as autonomous (3) So we should reject FSE. individuals. But one can accept the centrality of these values with- As Jeremy Waldron — a leading proponent of this view — puts it: out accepting FSE. Indeed, in spite of his enthusiastic rhetoric, Mill himself admits limits to freedom of expression. “[E]ven opinions”, he The publication of hate speech is calculated … to com- writes, “lose their immunity when the circumstances in which they are promise the dignity of those at whom it is targeted, both expressed are such as to constitute their expression a positive instiga- in their own eyes and in the eyes of other members of tion to some mischievous act” (OL: 53). The arguments above simply society. And it sets out to make the establishment and point out that Mill’s own reasons for preferring a regime of free expres- upholding of their dignity — in the sense that I have de- sion also suggest reasons for regulation that go beyond those aimed to scribed — much more difficult. (2012: 5) prevent “positive instigation to some mischievous act”. In undermining the dignity and social standing of minorities, hate speech issues in a distinct kind of harm — dignitary harm.10 Tolera- III. The Darker Mill tion for significant (dignitary) harms is, in turn, incompatible with Having stated these objections to FSE (and having shown that each of the Millian harm-prevention paradigm recommended by Mill’s harm them appears compatible with a basically Millian framework), I turn principle. now toward the task of uncovering a darker Mill. While Mill’s darker It is common to react to arguments of this kind by rejecting the sec- side is, no doubt, not his only side, discussions of free speech and its ond premise. Speech might offend, skeptics say, but it simply cannot value would do well to complement their vision of Mill with an appre- harm in the sense relevant for grounding interference in others’ affairs. ciation for his pessimistic conception of human nature.11 This is not the route I pursue here. The second premise is plausible. To start, recall that Mill begins On Liberty with a brief history of po- Speech is a type of act and, like other acts, may result in harm. Indeed, litical power. At first, political power was acceded to because it offered the harms of speech can be more serious and worthy of our concern the vulnerable protection from the strong: “To prevent the weaker than the harms associated with “physical acts”. Instead, as with the first members of the community from being preyed upon by innumerable 11. Jacobson (2000) admits that Mill’s arguments for the doctrine of liberty rest 10. While Waldron is himself reluctant to extend his argument to the American upon his “controversial claims about human nature” (296). It is a part of my case (opting instead to make good normative sense of non-exceptionalism), goal in this essay to show what Jacobson conjectures, namely that “a per- others employ substantively similar arguments to ground agendas of reform. spicuous assessment of these claims, almost a century and a half later, would See e.g., Maitra and McGowan 2012: passim; McGowan 2019: ch. 7. not be unflattering to Mill” (ibid.).
philosophers’ imprint – 5 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear vultures, it was needful that there should be an animal of prey stronger preference felt by other people” in justifying their intolerance (OL: 6). than the rest” (OL: 2). The “animal of prey” to which Mill refers is, of Those in charge consider questions of “what things society ought to course, nothing other than the state. However necessary, the state’s like or dislike” without considering whether society’s “likings or dislik- founding brings new dangers. Just as “the king of the vultures would ings should be a law to individuals” (OL: 7). be no less bent upon preying on the flock than any of the minor har- Even when respect for individual freedom appears principled (e.g., pies”, so it was at first “indispensable to be in a perpetual attitude of de- respect for religious difference following the reformation), the ap- fense against” the power of the state (ibid.). This perpetual attitude of pearance is often misleading: “those who first broke the yoke of what defense brought with it not only the notion of political rights and lib- called itself the Universal Church were in general as little willing to erties held against governing agents — “certain immunities … which permit difference of religious opinion as that church itself” (ibid.).12 In- it was regarded as a breach of duty in the ruler to infringe” — but also stead, they merely realized that prudence recommended limiting their “constitutional checks” on the power of the state to ensure that these “hopes to retaining possession of the ground [they] already occupied” immunities were adequately respected (ibid.). than vying for power over the rest (ibid.). Put differently, “minorities, In time, these checks on state power were supplemented by repre- seeing that they had no chance of becoming majorities, were under sentative government, making it appear that the state and the people the necessity of pleading to those whom they could not convert for subject to it were one, and that the state, being constituted by the permission to differ” (ibid.). Even apparently principled religious tol- people, could not harm them. The nation, in Mill’s words, no longer eration, then, comes about less for reasons of principle, and more due appeared to need protection against what it saw as “its own will” (OL: to an incapacity for pursuing the modes of intolerance they like best. 3). Indeed, what once served as protections against tyranny now ap- For Mill, the point is perfectly general: intolerance is “so natural to peared as shackles on the self-legislative capacity of the general will. mankind” that most alleged tolerance is merely disguised weakness Mill is perhaps best known for his tendency to throw cold water on (OL: 8). The human disposition to “impose [one’s] own opinions and any naïve identification between the individual’s will and the will of inclinations as a rule of conduct on others”, Mill writes, is “hardly ever the majority. As he famously puts it, “the ‘self-government’ spoken of kept under restraint by anything other than but want of power” (OL: is not the government of each by himself, but of each by all the rest” 13). (OL: 4), and as such, can very well be tyrannical. Mill paints a picture according to which human beings are med- So much for Mill’s reading of the history of political power. This is dlesome, biased in their own favor, and afraid of and often hostile to reasonably well-trodden terrain. What’s less often discussed is Mill’s difference. They view the means of legal and social control as tools account of human nature, which amplifies his famous concern about for ensuring that others live according to their model, and espouse the tyranny of the majority. Human beings, Mill reports, are given to principle only when they predict that doing so will protect them from believe that it is generally unnecessary to offer reasons for interfering 12. It is true, as an anonymous referee points out, that (in Mill’s formulation) in others’ lives, “that their feelings on subjects of this nature are bet- harm is a necessary rather than a sufficient condition of interference, and rightly so. But his readers have not always recognized this (see e.g., Leiter ter than reasons and render reasons unnecessary” (OL:5). In general, 2016: 432). Moreover, Mill holds that interference to prevent significant harm a person’s grounds for restricting some behavior run no deeper than to others is pro tanto justified, as his chapter on applications demonstrates (On Liberty: ch. 5). Hereafter, citations to On Liberty are abbreviated “OL”; cita- the “feeling … that everybody should be required to act as he” (ibid.). tions to Principles of Political Economy are abbreviated “PPE”. (For editions, see: In the best scenarios, persons are prepared to “appeal to a similar Mill 1978, 1965.)
philosophers’ imprint – 6 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
interference by others who are in fact stronger. In his Principles of Po- by noting that departure from the norm of laissez-faire in the domain of litical Economy, he explicitly connects these aspects of our psychology speech is demanded by the need to realize “some great good”. with the issue of free expression. As he puts the point there, But Mill cannot have it both ways.13 It cannot be both that humans are seldom principled actors, that they frequently use whatever means [although] freedom both of opinion and of discussion is in their power to impose their vision of the good and the right on oth- admitted as an axiom in all free countries, this apparent ers who disagree, and that it is sound practice to create institutional liberality and tolerance has acquired so little of the au- structures that give the powerful increased authority to do just that, thority of a principle, that it is always ready to give way merely under the guise of pursuing some good. For even if we grant to the dread or horror inspired by some particular sort of that some proposed regulation on speech is grounded in principle and opinions. (PPE V.x.6) is not about imposing a sectarian conception of the good on anyone, When it does give way, the government is afforded greater power for but in preventing harm or realizing a great and universal good still, intervention. This is concerning, for “every increase of the functions laws do not determine their application. People do. devolving on the government is an increase of its power, both in the It is well and good to note that as a philosophical matter of prin- form of authority, and still more, in the indirect form of influence” (PPE ciple, there are reasons to restrict certain kinds of speech.14 The stand- V.xi.2). And democratic accountability offers thin protection against 13. An anonymous referee suggests that Mill’s position in On Liberty is consis- abuse. Elected representatives are “quite as ready as any organs of oli- tent in constraining interference to the prevention of harm and that Mill garchy, to assume arbitrary power” when they can count on popular may have abandoned the view (expressed in Principles of Political Economy) that interference necessary to pursue positive goods is justified. If this is cor- support (ibid.). On the basis of these and other considerations, Mill rect, it would relax the tension I see in Mill’s position (thereby making my concludes that “[l]aissez-faire … should be the general practice”, hold- task easier). But it would not, I think, eliminate it. For many of the “goods” FSE skeptics identify as important for justifying free speech regimes admit ing at the same time that “every departure from it, unless required by of formulations as harms to be prevented. My account stresses not merely some great good, is a certain evil” (PPE V.xi.7, emphasis added). that rights are grounded in preventing harms, but that they are grounded in Mill exhorts us to be principled, at the very same time that his ac- preventing a certain class of harms, namely those that appear to inevitably eventuate when the state has the power to interfere with citizen expression. count of human nature throws cold water on any optimism that we 14. Is this all my opponents wish to argue? Perhaps. Toward the conclusion of will comply. His pessimism on this front, which constitutes what I’ve his essay, Leiter, for example, argues that introducing concerns over enforce- been calling his darker side, leads him to adopt the view that the strong ment changes the topic from free speech to political institutions:
default position ought to be liberty, and that the case for interference If the key question in free speech jurisprudence is how to insure compe- must be based on a great good that can be obtained only by means of tent regulation of bad speech, given that much, maybe even most, non- the interference. The emerging Mill is, to be sure, a partial Mill. For it mundane speech may turn out to be bad speech, then the question is not about free speech at all, but about political institutions. (2016: 435) is also Mill that claims that “interference of government is, with about equal frequency, improperly invoked and improperly condemned” This is somewhat odd, given Leiter’s focus on “the polity”. In any case, I believe that the questions about freedom of speech and opinion Mill meant to intro- (OL: 9). It is also Mill whose mode of argumentation strongly suggests duce were inherently questions of political institutions and their normative that the objections to FSE canvassed in the previous section are sound grounds, and that the above considerations above show at least that much. Thus, it seems to me that if anyone is guilty of changing the topic, it is not Millian objections. For those objections appear to proceed precisely those of us focused on these institutional questions, but those who would in- sist on an abstract analysis of the content of certain pre-political moral rights.
philosophers’ imprint – 7 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear ing, powerful defeater of those reasons is simply that political power- interests empowers state and otherwise powerful actors to interfere ful actors are human (at best accountable to majorities and counter- in individual’s lives, and these powers are regularly and to disastrous majoritarian mechanisms) and that, qua human, they use principles effect abused. opportunistically. That is, although they may claim to be interfering in the lives of others by appeal to the relevant principle, this will often IV. FSE, Defended simply serve to conceal that they really seek to impose their preferred I concluded the last section by pointing out a tension in Mill’s position. uniformity on others. Others, sensing this (or unable to see that the He cannot, I claimed, abandon FSE in just any case in which a great restriction on their liberty really is principled) turn from pursuing their good may be efficiently achieved (or an evil averted) by regulating purposes privately (since they have been barred from doing so), and speech. Rather his pessimism about human nature implies that execu- seek instead to gain public power to retaliate. The predictable result is tives, legislators, judges, and voters alike will abuse their new pow- more interference over time of the unprincipled kind, even should the ers to regulate in self-serving ways. The darker Mill’s views on human initial effort be well-meaning and well-grounded. nature are sufficiently dark that what all can agree is a risk in ordinary In view of the darker Mill, the problem with the three objections contexts (namely that legislation may be abused) approaches the sta- to FSE canvassed in § II is not that a regime of free speech is an op- tus of a decisive factor in the domain of speech acts. As Ronald Cass timal way of pursuing truth. It is not that some persons’ speech can put the point some decades ago, the protection of speech encodes “a never deprive others of voice. It is not, finally, that a regime of free fear of certain ill-defined and disparate government actions”, rather speech will never result in speech-based harms. The primary prob- than a promise to realize certain positive goods (Cass 1987: 1422).15 lem with each of these arguments is not then in their second premises, Therefore, the starting point “is not what is good about speech; instead but in their first premises. Each first premise makes out that a free the initial question is what were the worries about government con- speech regime is to be accepted only insofar as it optimally advances trol of speech” (ibid.: 1443).16 some goal or avoids certain kinds of harms. Instead, speech is to be Such an outlook coheres well with what Judith Shklar calls the lib- protected because regulation for the purpose of promoting certain eralism of fear, which would direct our attention not to what we might achieve by restricting speech, but to what we risk when we empower people to carry out the restrictions. Such a liberalism In part for this reason, I believe Howard (2019) is wise to recommend that the contenders in the debate over free speech more clearly specify which of three worries about the excesses of official agents at every claims they mean to defend. They might, e.g., mean to argue that (i) there is a level of government, and it assumes that these are apt moral obligation to refrain from certain kinds of speech, (ii) that there is a co- ercible obligation so to refrain, or (iii) that, all things considered, we ought to 15. Indeed, Cass notes later, the original “constraints on federal power were not regulate to keep speech within its proper bounds. Only by being explicit can the product of general beliefs in liberty, but of more focused fears about its we avoid talking past one another. For my part, I readily acknowledge moral unjustified infringement” (1987: 1441). obligations to refrain from certain kinds of speech. My view is less settled on whether these duties are in-principle permissibly enforceable (much hangs 16. Although I sympathize with much of Cass’s negative approach, our projects on what kind of enforcement is at issue). My point in this essay is only that, all are methodologically distinct. He is primarily interested in offering a correct things considered, recognizing a right to free speech for the reasons Mill did theoretical approach to issues of first amendment jurisprudence, which has implies that state-sponsored content-based speech restrictions ought to be predictive aspirations. Here, a correct theory captures judges’ actual reason- opposed up to the point at which the relevant “speech” constitutes conspiracy ing about cases, and is tightly moored to history. My own aspirations are nor- to commit a crime. mative. What is the best defense of FSE, even if it is nowhere realized? philosophers’ imprint – 8 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
to burden the poor and weak most heavily. The history the normative facts, a restriction on speech for a good reason looks to of the poor compared to that of the various elites makes a person who disagrees indistinguishable from an arbitrary restriction. that obvious enough. The assumption, amply justified by In turn, since we are imperfect precedent-based thinkers, those who every page of political history, is that some agents of gov- think that the restriction was unjust may seek to restrict others’ speech ernment will behave lawlessly and brutally in small or big in actually unjust ways as soon as they can gain power as a means of ways most of the time unless they are prevented from do- retaliation. ing so. (Shklar 1989: 28) Marcuse — the great intellectual of the New Left — famously called for repression of views that would oppose the extension of New Deal The liberalism of fear does not deny that there are power asymmetries policies (1969: 100). Suppose that such a restriction or a more sensi- between private citizens or between individuals and corporate bodies. ble one, say that proposed by McKinnon (2016) against climate change Nor does it deny that much speech is of itself worthless or counterpro- denialism were to win legislative favor. This may have epistemic ductive or even harmful, or that these facts are sensible objects of con- benefits in the short term. But is it simply obvious that these epistemic cern. It simply notes that providing additional space for governments benefits would carry over in the longer term? Or is it not reasonable to to exercise arbitrary power is an odd medicine. As Shklar puts it, “while worry that those silenced (and those who agree with those who have the sources of social oppression are indeed numerous, none has the been silenced) are likely to respond in kind — to vie for political power, deadly effect of those who, as agents of the modern state, have unique claim that restrictions on speech are necessary (and admitted by op- resources of physical might and persuasion at their disposal” (ibid.: ponents anyway) and to ensure that they get just the restrictions they 21). In my view — inspired by Shklar, Cass, and the darker Mill — we want?17 By hypothesis, these restrictions will not be the right ones. By should embrace FSE and reject calls for speech-restrictive legislation hypothesis, they will be put in place by the already more influential. insofar as we fear providing government actors — themselves often Skeptics are likely to reply that we already have ample proof of the rich and powerful private agents — with the power to restrict speech, possibility of overcoming the darker sides of human nature when it and thus reject calls to regulate speech. comes to the regulation of speech. Even the exceptional United States One might reply: all evils can be reframed as privations of goods, has triumphed in this respect. First amendment freedoms, they will and so in terms of them, and all goods can be reframed as absences of say, have never included the freedom to incite to illegal activity, and evils, and so in terms of them. While a version of this is sure to be right, restrictions on fighting words have been applied reasonably impar- nevertheless, the difference in framing matters. Liberals of fear focus tially. Second, other countries have enacted restrictions on speech that neither on the ways in which speech is good nor on the ways that it in- go well beyond these restrictions and are worded precisely enough vites evil, but on the reasons why speech is the kind of thing that pow- as to be successfully implemented without widespread abuse. Thus, erful people want to interfere with. Fearful liberals notice that restrict- proposed regulations (e.g., regulations on pornography and hate ing expression — more than restricting action — can aid to achieve speech) might be successfully implemented. There are risks, true. But, conformity in thought, and that it is therefore important to keep tools of restriction out of the hands of the powerful. They understand that, 17. We see this already in Trump’s claim that media outlets critical of his admin- istration ought to be silenced by means of a broadening of libel laws. How for beings like us, diversity is difficult, and this difficulty often leads us much better his case looks to those sympathetic with him if we have admitted to want to snuff it out. They recognize that, because we disagree about restrictions in other domains. For a record of Trump’s troubling claims about free expression compiled by the ACLU, see Tashman 2017.
philosophers’ imprint – 9 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
as Catherine MacKinnon says, risks that regulations will be “misused fact was known and relied upon by those who sent the have to be measured against the risks of the status quo” (1987: 195). paper out. (ibid.) By contrast, FSE seems to implausibly imply that we shouldn’t even Since we do not know how strong the government’s evidence was in undertake the calculation. Let’s take these objections in turn. this direction, Holmes and the other justices unanimously agreed, the First, note that FSE skeptics are quick to remind readers that the conviction must be upheld. There are many early cases like this. U.S. as a matter of doctrine allows for regulation of speech, often citing There are two things to notice about these early cases. First, they with zeal Justice Oliver Wendell Holmes’ claim that there is no protect- upheld convictions that seem (independently of the constitutional ed liberty to shout fire in a theater and cause a panic (Schenck v. United issues at stake) unjust. Minority socialist opinions in fact unlikely to States, 249 U.S. 47 1919). Speech, in short, is not an absolute right, has pose any real danger to anyone were suppressed to promote an atmo- not been treated as such by the courts, and need not be treated as sphere of unity surrounding the state’s interests. The court trusted — in such to ensure just outcomes. It is ironic, I think, that these words are a way that it should not have trusted — the government’s judgment drawn from a case pursuant to the Espionage Act of 1917. The plain- that the relevant speech posed a clear and present danger that the tiff, Charles Schenck (then general secretary of the American Socialist state’s repression justifiably sought to avert. In other words, the clear Party), distributed a pamphlet to draftees, encouraging them to claim and present danger test — placed in the hands of real-world authori- their 13th amendment rights against enslavement and evade the draft. ties — led to the repression of speech that ought not to have been re- He was convicted for conspiracy to violate the Espionage Act and ap- pressed and the wrongful imprisonment of individuals whose rights to pealed to the Supreme Court, claiming violation of his first amend- speak ought to have been protected. For critics of FSE to cite Holmes’ ment rights. The court held that Schenck’s document, circulated as it words with approval is, therefore, somewhat odd. For the context was in wartime and intended as it was to obstruct the draft, consti- in which these words were delivered displays quite clearly the true tuted an attempt to incite to illegal activity. Schenck’s speech, Holmes grounds of FSE — fear of abuse and inappropriate restriction of speech judged, was just like shouting fire in a crowded theater. In its decision, resulting in the brutal punishment of the innocent. the court concurred with Holmes’ opinion unanimously. The second thing to notice is that this era of jurisprudence was In a second case affirming the same principle (Frohwerk v. United short-lived. Standing by these earlier decisions at the same time that States, 249 U.S. 1919), Justice Holmes delivered the opinion of the court, he seemed to contradict them, Holmes himself began to shift the tide again upholding a conviction for incitement. Jacob Frohwerk had pub- of judicial opinion in a more speech-protective direction when he de- lished a series of articles criticizing the involvement of the U.S. with livered the dissenting opinion in Abrams v. United States.18 In this case, World War I. For this, Frohwerk, too, was convicted of violating the five individuals printed and distributed pamphlets advocating the end Espionage Act. Again, the court ruled unanimously to uphold the im- of capitalism and the unity of workers’ interests across the globe. The posed penalties. Given the facts as they were, Holmes concluded that pamphlet especially encouraged the end of American intervention it was simply in Russia. While the court majority upheld the convictions under the impossible to say that it might not have been found that Espionage Act, citing the earlier decisions as precedent, Holmes de- the circulation of the paper was in quarters where a little murred, claiming that there was no clear and present danger in this breath would be enough to kindle a flame and that the 18. For a nice account of this important reversal, see (Healy 2013).
philosophers’ imprint – 10 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
case and that the marketplace of ideas was worth protecting, dangers formed to teach or advocate the doctrines of criminal syndicalism” aside. Later, in Gitlow v. New York (268 U.S. 652 1925), Benjamin Gitlow (395 U.S. 444 1969). The court ruled that Ohio’s statute must be struck was indicted for the statutory crime of criminal anarchy. Gitlow pub- down. For the first time, the government was now clearly held to be lished a manifesto in The Revolutionary Age advocating for violent revo- incapable of restricting speech so far as this stops short of “preparing a lution and decrying moderate socialism that worked on the margins. group for violent action and stilling it to such action”, i.e., engaging in Delivering the opinion of the court, Justice Sanford wrote that speech that comes arbitrarily close to criminal conspiracy (ibid.). The test articulated in Brandenburg was similarly applied to a case a State in the exercise of its police power may punish in the early eighties, surrounding the NAACP’s boycott of racist white- those who abuse this freedom [the freedom of expres- owned businesses. A consortium of white-owned businesses claimed sion] by utterances inimical to the public welfare, tending damages in response to the boycott, which they were awarded by the to corrupt public morals, incite to crime, or disturb the lower courts. The NAACP claimed that assessing damages in this way public peace. (ibid.) violated their first amendment right to peaceably assemble for politi- Sanford argued that the state was to judge the regulations required in cal change. At issue in the case was whether the NAACP’s boycott the pursuit of these interests, and thus that every “presumption is to be was protected by the first amendment, given that speech associated indulged in favor of the validity of the statute” (ibid.). Justices Holmes with the boycott constituted incitement to unlawful activity (e.g., an and Brandeis dissented, holding in these cases that there was no clear NAACP official stated in a meeting: “If we catch any of you going in and present danger of revolution. any of them racist stores, we’re gonna break your damn neck”). The Although judicial sentiment began to change, then, change would court (rightly) held (1) that the fact that some associated speech ultimately be slow. Continuing its pattern of upholding wrongful con- was unprotected does not entail that the entire boycott must also be victions, the McCarthy-era court famously upheld the constitutionality deemed unprotected, and (2) that, in any case, the relevant speech of the Smith Act, which held that it was a criminal offense to belong to failed to meet the test (incitement to imminent lawless action) set out a group that advocated (or to advocate oneself) for the violent over- in Brandenburg for identifying unprotected speech (458 U.S. 927 1982). throw of the government. The act resulted in several wrongful convic- The decision of the lower courts was thus reversed. tions, the victims of which were overwhelmingly vulnerable members In each of these cases, the court’s reasoning follows a similar pat- of the political left. It wasn’t until Brandenburg that the clear and pres- tern. There is no absolute right to speak; the state has an interest in ent danger test was construed in a sufficiently narrow way by a major- regulating speech that endangers the general welfare; the crucial ques- ity of justices to overturn wrongful convictions and strike down unjust tion is whether the speech counts as incitement (and the answer is se- regulations on speech of the kind canvassed thus far. cured by applying certain tests, construed increasingly narrowly over In Brandenburg, a KKK rally was deemed protected against the time19). The issue is that depending on who is sitting on the bench, Ohio Criminal Syndicalism statute. Under this statute, a KKK member that same basic pattern of reasoning yields radically different results. was found guilty of “advocat[ing] … the duty, necessity, or propriety Some courts manage to protect speech against improper state regula- of crime, sabotage, violence, or unlawful methods of terrorism as a tion, and others not. Since our justice system is precedent-based, the
means of accomplishing industrial or political reform” and for “volun- 19. In fact, legal scholars point to three tests: clear and present danger, reason- tarily assembl[ing] with any society, group, or assemblage of persons able suspicion of danger, and incitement to an imminent lawless action.
philosophers’ imprint – 11 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
result of the particular direction of the court has been to press in the legislation in question is overly broad or vague, or impermissibly re- direction of greater protection of speech — this in large part is where stricts the content of speech (ibid.). our current exceptionalism has come from. It’s worth noting well how It isn’t hard to see why fighting words statutes are often dismissed delicate a fact that is. Schenck has never been overturned. It remains by the courts as unconstitutionally broad or vague. Consider the good law. court’s reasoning in Gooding v. Wilson (405 U.S. 518). In Fulton County, That FSE skeptics invoke the U.S. doctrine of failing to protect Georgia, code §26-6303 provides that “any person who shall, without fighting words is similarly strange. The landmark case in which the provocation use to or of another, and in his presence … opprobrious Supreme Court defends a ban on fighting words is Chaplinsky v. New words or abusive language, tending to cause a breach of the peace Hampshire (315 U.S. 568 1942). The statute reads: … shall be guilty of a misdemeanor”. Gooding was indicted for utter- ing, among others, the words “White son of a bitch, I’ll kill you” to No person shall address any offensive, derisive or an- a police officer attempting to restore order. Justice Brennan, deliver- noying word to any other person who is lawfully in any ing the opinion of the court, argued that “the dictionary definitions street or other public place, nor call him by any offensive of ‘opprobrious’ and ‘abusive’ give them greater reach than ‘fighting or derisive name, nor make any noise or exclamation in words’”. With these words, in any case, the entire jurisprudential basis his presence and hearing with intent to deride, offend or for refusing constitutional protection for fighting words is undone, the annoy him, or to prevent him from pursuing his lawful court’s refusal to reverse Chaplinsky notwithstanding. For the original business or occupation. Chaplinsky ruling concerned a statute that prohibited intending to “an- The court upheld the law. It reported: noy” another person in a public place, and surely annoyance reaches no less far than “opprobrium”. Gooding is one of many cases in which There are certain well-defined and narrowly limited class- the court veers strongly in a speech-protective direction that makes it es of speech, the prevention and punishment of which very difficult for governments to regulate fighting words. What’s more has never been thought to raise any Constitutional prob- is that, pertaining to both the fighting words doctrine and the incite- lem. These include the lewd and obscene, the profane, ment doctrine, the court failed to protect citizens’ speech until it tied the libelous, and the insulting or ‘fighting’ words — those its own hands by making it nearly impossible to characterize these that by their very utterance inflict injury or tend to incite classes of speech as unprotected.20 an immediate breach of the peace. (ibid.) 20. Chemerinsky reports that the court’s decision in R.A.V. v. City of St. Paul Min- The irony is that, though Chaplinsky remains good law and has never nesota was the nail in the coffin of the fighting words doctrine. St. Paul Min- been reversed, the court has never again upheld a fighting words con- nesota’s Bias-Motivated Crime Ordinance provides explicitly that viction. As Chemerinsky reports, “every time the Court has reviewed whoever places on public or private property a symbol, object, appellation, a case involving fighting words [after Chaplinsky], the Court has re- characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know versed the conviction, but without overruling Chaplinsky” (Chemer- arouses anger, alarm or resentment in others on the basis of race, color, inksy 2017: 1387). To do this, the court has held either that the fight- creed, religion, or gender commits disorderly conduct and shall be guilty of a misdemeanor. ing words doctrine “applies only to speech directed at another person that is likely to produce a violent response” or that the fighting words In R.A.V. (505 U.S. 377 1992), Justice Scalia delivered the opinion of the court,
philosophers’ imprint – 12 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
For the defender of FSE, these are promising developments. does not cause harm is supported by appeal to existing practice, e.g., Speech — even that which might lead others to commit vio- in places like Canada, which outlaws hate speech thus: lence — ought not to be restricted by law. The history that has brought 319(2): Every one who, by communicating statements, it about that very little of such speech is capable of restriction in the other than in private conversation, willfully promotes ha- United States is long and winding, and strongly suggests that Mill was tred against any identifiable group is guilty of correct to worry that anything shy of absolute protection in the do- (a) an indictable offense and is liable to imprisonment main of speech was asking for trouble. Still, it is not crazy to look at for a term not exceeding two years; or this history, acknowledge the risks, and determine that they are toler- (b) an offence punishable on summary conviction.21 able. Moreover, the critic of FSE can join with its proponents in cele- brating these trends. Holding that sometimes speech can be regulated While this law appears capable of abuse, there have been relatively does not commit one to applauding the early court’s capacious under- few reports of actual abuse (Bleich 2011). Proponents of regulation standing of unprotected speech. What’s more is that there are some will say that this cements their case. To reject good regulations (like limitations on speech — restricting, e.g., pornography, hate speech, Canada’s) because of the bare possibility that they’ll be abused is to and fraudulent politically motivated speech that do not seem liable to make a slippery slope argument of the worst kind. excessive abuse. Perhaps. But first: it is worth venturing beyond Canada and Europe, There are two lines of response to this more specific worry. First, where liberal democratic institutions have enjoyed remarkable stabil- proposed formulations of the relevant restrictions do indeed raise ity. For that kind of stability is easy to take for granted, and liberals of realistic worries of abuse. Second, in contexts of deep disagreement, fear owing to their fear wish to take little for granted. In countries where the importance of expressive liberty is widely recognized, sup- in transition like India (Eswaran 1992) and South Africa (Johannessen pression of controversial speech provides grounds of reciprocity for 1992; Marcus 1992), attempts to regulate hate speech and incitement those who engage in such speech to vie for political power to suppress to racial violence have not successfully avoided being abused, despite speech they don’t like. The fact that some persons are correct in their the fact that the regulations are cast in language similar to that found concerns and others are not matters little. For in politics, power, not in Canada and various European countries. Rather, they have been truth or rightness, is the (empirical) rule. used by the powerful to pursue their own political gain and to repress The idea that certain countries have already struck a better balance those with whom they disagree, especially voices on the political left. between respecting the liberty of expression and ensuring that speech 21. Canada has built in some important exceptions: 319(3): No person shall be convicted of an offence under subsection (2) striking down the legislation not on the grounds that it was overly broad — the if he establishes that the statements communicated were true; court held that it was narrowly tailored to unprotected speech — but on the if, in good faith, he expressed or attempted to establish an argument on a grounds that it restricted only speech that caused anger or resentment on religious subject; specified grounds of race, color, creed, religion, or gender, i.e., amounted to if the statements were relevant to any subject of public interest, the discus- a content-based restriction. Post R.A.V., Chemerinsky explains, a narrowly sion of which was for the public benefit, and if on reasonable grounds construed statute would violate prohibitions on content-based restrictions. he believed them to be true; or By contrast, if a statute were not narrowly construed, it would run up against if, in good faith, he intended to point out, for the purpose of removal, mat- the prohibition on over-breadth. This had the effect of basically guaranteeing ters producing or tending to produce feelings of hatred toward an iden- that fighting words legislation would be struck down by the courts (Chemer- tifiable group in Canada. insky 2017: 1396).
philosophers’ imprint – 13 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
Their abuse has meant punishment of innocent people — and the right, we should expect for these individuals and groups, resentful of widely recognized Blackstone rule holds that punishing the innocent zeal to restrict their own speech, to vie for their own favored speech re- is worse by orders of magnitude than not punishing the guilty. And strictions, so far as they have the power to do so. It goes without saying second, a recent report by Glen Greenwald suggests that the story in that the result of this would be an inappropriate suppression of ideas, countries like France and England is not as encouraging as FSE skep- likely involving the unjust jailing of persons. In general: the postwar tics might have you believe. In 2015 France, for example, 12 activists period which has grown both American free speech jurisprudence and were arrested and sentenced for wearing T-shirts that read, “Long Live European and Canadian restrictions remains relatively young — per- Palestine, Boycott Israel”. When challenged, the sentences held up. haps too young for critics of the liberalism of fear to declare victory. The T-shirts were alleged (and found by the courts) to be antisemitic For the liberalism of fear recognizes that we live in a dynamic world, (Greenwald 2017). If there’s any doubt that the U.S. is at risk for going that victories won might be reversed in time. We ought accordingly to the same way, look no further than the legislation on the table that have in place the most general safeguards for our freedoms, that they would make it illegal for companies to boycott Israel.22 Or the fact that may be wrested from us only with great difficulty. Republican legislators are already trying to get Black Lives Matter clas- sified as a hate group.23 A slippery slope argument — so far as it is fal- V. Conclusion lacious — provides no real reason to believe in the slipperiness of the I have argued that the primary problem with most recent attempts to slope. By contrast, there is here significant reason for caution before discredit FSE lies in their embrace of the optimistic J. S. Mill at the ex- an icy hill. pense of his darker side. As political actors and voters, we should be One might argue that abuse in such cases — real or imagined — is highly skeptical of regulations of speech, even when those regulations not a failure of the laws, but a failure of democratic accountability in take aim at speech which is misleading, foolish, hateful, or harmful these countries. But it is important that what accountability to a demos for the purpose of realizing great goods, and even when the proposed secures depends upon the composition of the demos. And all across restrictions appear unassailable (no yelling “fire” in public places). The the world, we are witnessing a resurgence of hate groups and far-right reason is not that the outlawed speech might (in ways difficult to pre- political activity. We ignore these trends at our peril and should strive dict) contribute to the good (although it may25). The reason is that the to better understand their sources. Leaders of these groups are already outlawing involves creating new powers for state agents to interfere leveraging the state’s laws against libel and defamation to suppress in individual lives — powers which might continually expand in ways their critics and are explicitly critical of deviance from FSE.24 If Mill is that we reasonably fear. But all of this might ring seriously hollow. For none of it addresses th 22. S. 720 − 115 Congress: Israel Anti-Boycott Act,
philosophers’ imprint – 14 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
It is important to note that it is historically minorities that suffer the speech, to review sources of information (weeding out epistemically brunt of legislative and judicial abuse. True, if things go well, a regime vicious sources), and to provide educational and outreach services for of regulation seems to advance the position of these vulnerable per- tackling hate and bigotry at its very roots. With these calls to richer sons better than laissez-faire. But the liberal of fear does not assume imagination, I conclude. that things will always go well, and her fears in the event that they do not are most significantly fears for the already vulnerable. Thus, the References view argued for in this paper does indeed have a tilt toward concern Aleem, Z. (2019). “Ahead of a Far-Right Rally in Portland, Trump for the least well-off — but it is one that looks long, not short. Tweets a Warning to Antifa.” Vox.
philosophers’ imprint – 15 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
Kevin Boyle, and Frances D’Souza. United Kingdom: London Hu- Maitra and Mary Kate McGowan. Oxford: Oxford University Press, man Rights Center, University of Essex, 171−181. 1−24. Fish, S. (1994). There’s No Such Thing As Free Speech… And It’s a Good Marcus, G. (1992). “Racial Hostility: The South African Experience.” Thing, Too. New York: Oxford University Press. In Striking a Balance: Hate Speech, Freedom of Expression and Non- Gelber, K. (2012). “‘Speaking Back’: The Likely Fate of Hate Speech Discrimination. Edited by Sandra Coliver, Kevin Boyle, and Frances Policy in the United States and Australia.” In Speech and Harm: Con- D’Souza. United Kingdom: London Human Rights Center, Univer- troversies Over Free Speech. Edited by Ishani Maitra and Mary Kate sity of Essex, 208−222. McGowan. Oxford: Oxford University Press, 50−71. Marcuse, H. (1969). “Repressive Tolerance.” In A Critique of Pure Toler- Greenwald, G. (2017). “In Europe, Hate Speech Laws are Often Used to ance. By Robert Paul Wolff, Barrington Moore Jr., and Herbert Mar- Suppress and Punish Left-Wing Viewpoints.” The Intercept.
philosophers’ imprint – 16 – vol. 20, no. 34 (november 2020) j. p. messina Freedom of Expression and the Liberalism of Fear
Tashman, B. (2017). “Donald Trump Thinks the Freedom of the Press Is ‘Disgusting’.” ACLU.
philosophers’ imprint – 17 – vol. 20, no. 34 (november 2020)