Free Speech

Something interesting to ponder this morning–the appropriate limits to the right of free speech.

Free speech is an essential bedrock of a free and democratic society. Almost everyone would agree with that. But should any limits be imposed on speech?

Because free speech is so essential to free society generally, I suspect most of us are inclined to answer that question “No.” But in fact even in a free society there are limits to what a person is allowed to say freely. In some cases false or misleading statements are illegal–as in the case of fraudulent misrepresentation, defamation, false advertising, yelling “Fire!” in a crowded theater, etc. Likewise there are legal limits to when some truthful statements can be made–for example it can be a crime to reveal confidential information.

What about speech intended to be insulting? In our society such speech is generally legally permissible, but not always. For example the intentional infliction of emotional distress is a long-recognized tort, encompassing speech that is considered outside the bounds of human decency and specifically intended to cause emotional distress.

Salmon Rushdie is a well-known proponent of unrestrained free speech, having written a book that offended fundamentalist Muslims leading some to call for his murder. I’m not sure how he would respond to the examples above, but he has said, “When someone says ‘I believe in free speech, but…’, I stop listening.” He has also said, “Once you start limiting free speech, it’s not free.”

Mr. Rushdie has a purely deontological free speech ethic–meaning he believes free speech is so important that it must be allowed and defended regardless of the consequences of the speech.

A consequentialist, by comparison, would decide whether speech should be allowed based on the consequences of the speech. Speech that does more harm than good, according to consequentialist reasoning, is unethical and may be prohibited.  So for example a consequentialist might conclude that there being no positive benefit to society from holocaust denial, and some potential negative consequences from it, then it may be ethically prohibited.

That example doesn’t seem very troublesome, but what about something like climate change denial? The negative consequences may be enormous and the positive benefits minimal or non-existent (I’m just using this as an example–not looking to start a debate about climate change). So would it be best for society to prohibit climate change denial? What about “fake news” stories on Facebook? If there is evidence that gullible people are accepting the stories as true, and that is in turn affecting election results, should such stories be prohibited?

What about the Charlie Hedbo cartoons mocking Muhammad? The negative consequences were predictable and tragic, and the public benefit was arguably minimal or non-existent. So should such cartoons be illegal? A deontologist would answer “No,” on the grounds that free speech should be permitted and defended regardless of the consequences–even the deaths of innocent people, while a consequentialist would likely answer “yes,” on the grounds that it is better to prevent the likely deaths of innocent people than to permit speech that would lead to those deaths, where the speech is of no benefit to society. Of course both of those positions are easily critiqued by ethicists–would the deonotologist feel differently if the persons to die were known in advance? If they were people he knows and loves? Would the consequentialist allow the parameters of free speech to be defined by the most violent and thin-skinned members of society?

J.S. Mill said that the collision of ideas produces truth. And there is one of the rubs. Aside from the deontological attraction of free speech, allowing offensive or scientifically incorrect speech may contribute to the collision of ideas and therefore the generation of truth–a consequential benefit that is difficult to measure but would have to be factored into any consequentialist equation.

The answer to the question of where the line should be drawn isn’t as easy as it might seem on first glance. Even as we continue to grapple with the proper limits of free speech, my guess is that we’ll continue to tilt in favor of allowing speech, even when it has likely negative consequences and minimal or non-existence public benefit, on the grounds that free speech is a public good unto itself, and that seems to me the right thing to do.

I’ll close this morning’s ramblings with this quote from Thomas Jefferson, which I have loved since I first saw it on an archway on the grounds of the University of Virginia:

“For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”

Wise words still.