Utilitas (2021), 33, 162–179 doi:10.1017/S0953820820000229 ARTICLE John Stuart Mill’s Harm Principle and Free Speech: Expanding the Notion of Harm Melina Constantine Bell Washington and Lee University Email:
[email protected] Abstract This article advocates employing John Stuart Mill’s harm principle to set the boundary for unregulated free speech, and his Greatest Happiness Principle to regulate speech outside that boundary because it threatens unconsented-to harm. Supplementing the harm principle with an offense principle is unnecessary and undesirable if our conception of harm integrates recent empirical evidence unavailable to Mill. For example, current research uncovers the tangible harms individuals suffer directly from bigoted speech, as well as the indirect harms generated by the systemic oppression and epistemic injustice that bigoted speech constructs and reinforces. Using Mill’s ethical framework with an updated notion of harm, we can conclude that social coercion is not justified to restrict any harmless speech, no matter how offensive. Yet certain forms of speech, such as bigoted insults, are both harmful and fail to express a genuine opinion, and so do not deserve free speech protection. In 1994 Stanford University sought to prohibit on campus, as discriminatory harass- ment: “personal vilification of [individuals] on the basis of their sex, race, color, handi- cap, religion, sexual orientation, or national or ethnic origin.” Under this policy, speech would be regarded as personal vilification only if it met each of these criteria: (1) “is intended to insult or stigmatize an individual or small group of individuals on the basis of” one of the listed categories; (2) “is addressed directly to the individual or individuals whom it insults or stigmatizes”; and (3) “makes use of insulting or ‘fighting words’ or nonverbal symbols,” which “‘tend to incite to an immediate breach of the peace,’ and which are commonly understood to convey direct and visceral hatred or contempt for human beings on the basis of” the listed categories.