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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 <www.philosophersimprint.org/020034/> 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).

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