Public Freedom, Private Constraint

Abstract

My 1992 Hamlyn Lectures, 'Speech and Respect', addressed the fundamental problem that communication, which makes us human and constructs society, also can inflict some of the greatest harms emotional, reputational, economic, and political on both individuals and collectivities.' I considered and rejected the two extreme responses to this problem: state regulation and what I called civil libertarianism. The latter position, typically an American fetishising of the important values underlying the First Amendment, takes the absolutist view that the state may neither favour nor limit speech. I offered a number of criticisms. First, even purists concede a large number of ad hoc exceptions: defamation, invasion of privacy, tort liability for intentional infliction of emotional distress, misrepresentation, professional advertising and solicitation, promotion of dangerous products (such as tobacco), obscenity and pornography, and criminal conspiracy and attempt. Governments limit speech in moments of heightened political fervor, especially in wartime. During the Persian Gulf War the California Department of Motor Vehicles recalled the vanity license plate '4 Jihad' until the car owner produced a birth certificate showing that his son's name was Jihad. Governments are obsessed with secrecy, broadly proscribing what their employees can say. The United States Department of Health and Human Services prohibited an Assistant Secretary of Health from testifying about the ill effects of American tobacco exports. Governments limit political activity by civil servants and members of the military. They silence aliens through exclusion and deportation. As publishers of printed matter, producers of films, and owners of radio and television stations, governments determine or influence content. The United States Office of Personnel Management deleted six pages on contraception and adolescent sexuality before distributing 275,000 copies of a childcare manual to federal employees. Government threatens dissident speakers through investigators and police. The FBI interrogated a British scientist about his visa status when he had the temerity to testify for the defence that DNA 'fingerprinting' was scientifically unreliable. Government uses security clearance and funding for scientific research to frighten critics. The United States of America threatened to prosecute an MIT professor who