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.

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19 comments on “Free Speech

  1. Laurie Graves says:

    Yes, wise words. Free speech is a sticky wicket that will no doubt continue to be debated. Perhaps that’s as it should be.

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    • Bill says:

      True. As much as I’d like to say that speech should be unfettered by government, it seems clear that there have to be some limitations. Where to draw the line, and how, isn’t easy to figure out.

      Liked by 2 people

      • Laurie Graves says:

        I think it is an issue that will never be fully resolved and will have to be revisited, time and time again.

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  2. freethnkr1965 says:

    I think it’s important to parse responsibility in one of the examples you use. The deaths at Charlie Hebdo did not occur because of the cartoon, they occurred because two brothers held an idea they were indoctrinated to believe should not be challenged. The negative consequences of the shooting lie squarely with the shooters and the theological-worldview that led to their action. The negative consequences of the cartoon were only and solely the offense felt by adherents of an idea.

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    • I am not fully versed on the Charlie Hebdo case. But, I wonder if there is any cartoon that could be presented that would offend Charlie Hebdo to his core. Should I be allowed to provoke him continually with my thoughts? I mean, should I be justified to spend my energy and money and influence to poke at him and everyone like him, in the name of free speech. Am I building up the human condition by tearing down his core values?

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    • Bill says:

      I’m not trying to apportion blame. Just saying that from a consequentialist point of view publishing cartoons that have no public benefit and are intended to offend and provoke a likely violent reaction would be unethical. The cartoons had been widely condemned and their offices had already been firebombed years earlier after they ran one depicting Muhammad making out with one of their cartoonists. Their motive, I suppose, was to defy those who deferred to the sensibilities of conservative Muslims, on the grounds that it was important to defend the principle of free speech, regardless of the consequences. That is a deontological position, and ethically defensible. Some group in Texas responded to the Charlie Hedbo attacks by sponsoring a Muhammad-cartoon drawing contest and, predictably, was attacked by terrorists. Fortunately only the attackers were killed in that instance, but again from a consequentialist point of view their actions were unethical while from a deontological point of view they were not. I think the episodes are good illustrations of the principle.

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  3. allisonmohr says:

    I struggle with “free speech” in the scientific realm. Andrew Wakefield published a fraudulent paper in 1998 and as a result thousands of children were not vaccinated. Science is about truth. A thing is true or it’s not, it’s binary. I read several doctor blogs and it appears the lines are being blurred about drug efficacy because the pharmas want to sell drugs and make money. Is advertising speech protected as well? I have no law background and frequently wonder about things I hear on commercials that I know to be false.
    And then what happened to common decency? The guy on Infowars is already ranting about the children killed in Manchester, calling them “liberal trendies.” They’re DEAD CHILDREN. Leave them alone! Why does that man even have an audience?
    And then there is lying. Is lying protected speech?
    I don’t know anymore, it’s a sad state of affairs.

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    • Bill says:

      There are some instances when a person can be jailed or held financially liable for lying, but generally it is not a crime to tell a lie. That the government should not put any prior restraint on speech is one of our fundamental constitutional principles. Our society has chosen to let people speak freely, within some narrowly drawn parameters. That does allow for a lot of speech most of us wouldn’t prefer to see. I didn’t even mention the free speech issues that come up in connection with things like pornography, flag burning, depictions of violence, advertising aimed at children, PAC campaign contributions, etc. There is a constant tension between our desire for free speech and the negative consequences of it. As you say, more human decency would help immensely.

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  4. I live by the golden rule, as do many. I make errors and do selfish things from time to time, but ” the do unto others as you would have then do unto you”, stands as a corrective influence to my words and actions. So, I want to measure free speech with the same rule.
    If the speech intends to demean the other or even hurt the other, then I would like to see our society put a muzzle on it. Everyone should be treated with words and actions of respect. Lying about them for public consumption is not right and should not be justified as a right of free speech.
    I would be all for free speech that builds up one’s own argument. Even the craziest and non factual argument, because it is the person’s own statement. If their goofy argument cannot bear the scrutiny of the crowd and the reflection of science, then it will be judged thus. Even if it takes some time. Even if we make mistakes because of the fervent but misguided statements. IF the statement was owned by the person presenting it, then I would go a long way to defend their right to say it.
    We have a situation today, (and for centuries) where the person hides behind something and does not own up to their statement. We have the anonymity of the internet and chat rooms. —No face to face encounters there. . . Or we hide behind our political tribe; or religious sect; or some think tank formed as a corporation. The thought is, “Those powerful entities say something similar to the lie or slander I am going to repeat, and I do not have to be personally responsible.”

    I am especially disdainful of those pundits who tell me what the other side is thinking. They tell me how the other side is devious and deceitful and to be feared because of their conniving.
    I think that is a “straw man” argument.

    I say. Say what you think. Put your name on it. Defend it in the public sphere.

    John Campbell

    Liked by 1 person

    • Bill says:

      You make an interesting point–prohibition of offensive speech can be a deontological position as well. Deciding what qualifies as offensive and who gets to decide would be tricky though. In Indonesia (as in much of the world) there is a law against blasphemy. A week or so ago the governor of Jakarta (a popular Christian politician) was convicted of blasphemy and sentenced to five years in prison for saying that his opponent was misinterpreting the Quran when he claimed it prohibits Muslims from living voluntarily under Christian leaders. Nearly everyone would agree that in that case a law designed to protect religious people from offensive speech is being used in a way that is damaging to a free society. I don’t know a good way around that tension.

      Well, there is your solution–follow the Golden Rule. If we all did that, we likely wouldn’t have any trouble with this issue. As Wendell Berry says, if we all behaved as ethically as we want our government to behave, then we wouldn’t need any government.

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  5. Here’s another one, Bill. I’ve been bothered by the controversy surrounding the conflict on the Berkeley campus regarding controversial speakers. Having participated in Berkeley’s Free Speech Movement of the 60s, I have a strong opinion about the right of people to have their opinions heard, regardless. But what happens when the ploy is to generate a violent confrontation because it fits a particular political ideology? Isn’t that a bit like yelling fire in a crowded theater? –Curt

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    • Bill says:

      It is worrisome to see what is happening. I think we should find troubling the increasingly accepted notion that it’s OK (desirable even) to prevent, forbid or shout down speech disagreeable to the majority. That should not be the kind of country we want to live in, imho.

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      • There was this wonderful corner of the Berkeley campus where Telegraph Avenue ends that was kept as a free speech center. Anybody was welcome to use it and pretty much say whatever they wanted. When I first transferred to Berkeley, I would always have my luck there because it fascinated me. I talked about in my book. Anyway, it was the Administration’s closing of that spot that kicked off the Free Speech Movement. –Curt

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  6. Dee Ready says:

    Dear Bill, thank you for this informative and enlightening essay on free speech. Right now, when the president keeps talking about fake news and many of those who support him have come to mistrust the media, the subject of free speech looms as an important one. The quote by Jefferson seems appropriate at this time as we try to sort fake facts from real facts and get into a quandary possible of what are facts. I feel sometimes as if our language is being wrestled into new meanings that are meant simply to defend opinions that are contrary to what someone wants to believe, someone who cannot face reality. Peace.

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    • Bill says:

      Studies have shown that when confronted with evidence that contradicts a strongly held political opinion, it not only doesn’t change the person’s mind, but tends to cause them to hold onto their disproven opinions even more strongly. Free speech is vitally important in my opinion, but it will take more than free speech to steer us back toward truth once we start clinging to opinions and biases that aren’t true.

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  7. This is a very interesting conversation at this time of our seemingly constant need to know witnessed by the endless scanning of Facebook, Twitter, and the numerous other social media sites as we work, eat, walk, talk, and use the restroom. Free speech goes on 24/7 as people spew their sometimes important and other times trivial opinions (as I’m doing right now) about absolutely everything. If there is a speaker at my local library, I have the option to choose to go and listen or stay home. That’s enough choice for me, but for others there is a need to tear that person down. I don’t understand the need to do that, but I was raised in a different generation. 🙂

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    • Bill says:

      I agree Judy. I do not understand or appreciate those who use their freedom to shout down those with whom they don’t agree and particularly to prevent others from hearing speakers they disagree with.

      Liked by 1 person

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