Freedom of Speech

Abstract

John Stuart Mill is a liberal icon, widely praised in particular for his stirring defense of freedom of speech. A neo-Millian theory of free speech is outlined and contrasted in important respects with what Frederick Schauer calls “the free speech ideology” that surrounds the First Amendment of the U.S. Constitution, and with Schauer’s own “pre-legal” theory of free speech. Mill cannot reasonably be interpreted to defend free speech absolutism if speech is understood broadly to include all expressive conduct. Rather, he is best interpreted as defending an expedient policy of laissez-faire with exceptions, where four types of expression are distinguished, three of which (labeled Types B, C, and D) are public or other-regarding, whereas the fourth (labeled Type A) is private or self-regarding. Types C and D expression are unjust and ought to be suppressed by law and public stigma. They deserve no protection from coercive interference: they are justified exceptions to the policy of letting speakers alone. Consistently with this, a moral right to freedom of speech gives absolute protection to Type B public expression, which is “almost” self-regarding. Type A private expression also receives absolute protection, but it is truly self-regarding conduct and therefore covered by the moral right of absolute self-regarding liberty identified by Mill in On Liberty. There is no need for a distinct right of freedom of expression with respect to self-regarding speech. Strictly speaking, then, an expedient laissez-faire policy for public expression leaves the full protection of freedom of private expression to the right of self-regarding liberty.An important application of the neo-Millian theory relates to an unjust form of hate speech that may be described as group libel. By creating, or threatening to create, a social atmosphere in which a targeted group is forced to live with a maliciously false public identity of criminality or subhumanity, such a group libel creates, or significantly risks creating, social conditions in which all individuals associated with the group must give up their liberties of self-regarding conduct and of Type B expression to avoid conflict with prejudiced and belligerent members of society, even though the libel itself does not directly threaten any assignable individual with harm or accuse him or her of any wrongdoing of his or her own. This Millian perspective bolsters arguments such as those offered by Jeremy Waldron for suppressing group libels. America is an outlier among advanced civil societies with respect to the regulation of such unjust hate speech, and its “free speech ideology” ought to be suitably reformed so that group libels are prevented or punished as immoral and unconstitutional.