The Ethics of Free Speech

Abstract

Most liberal societies are deeply committed to a principle of free speech. As a result, we sometimes tolerate very disagreeable speech. This is as it should be. After all, people have the right to say false things and they even have the right to say false and obnoxious things. Even more than this, though, some speech (e.g. racist hate speech) appears to be harmful. Arguably, racist hate speech undermines equality by causing things like racial discrimination. In this way, it looks as if allowing such speech means that one values the right to free speech even more than equality. Might our commitment to free speech be so strong that it is more important than our commitment to equality? Since a commitment to free speech is so important, it is prudent to be as clearas possible about what this commitment involves. For one thing, it does not mean that a person is free to say whatever that person wants to say. As we shall see, plenty of speech is regulated (e.g. insider trading, defamation, contracts). Furthermore, regulating such speech is perfectly compatible with a commitment to free speech. What a commitment to free speech does, rather, is make it more difficult to regulate speech. This means that the justifications offered for regulating speech must meet raised standards. In this way, a principle of free speech extends special protections to speech that make it more difficult to regulate. Why should it be more difficult to regulate speech than it is to regulate otheractions? What is it about speech that warrants these special protections? In other words, what makes speech so valuable? Theorists disagree about the right answer to this question but most offer one (or a combination) of the following three sorts of answers. The first answer maintains that speech ought to be protected because the free flow of ideas is the best (or only) way to access the truth (or knowledge). By saying what we think and by attending to the opinions and reactions of others, we, as a society, are more likely to form better-justified and hence true beliefs (Mill 1978). The second answer contends that speech must be protected in order for a democracy to function well. A society will be genuinely democratic only if we are free to criticize the government, tell ourrepresentatives what we want them to do and freely discuss matters of public concern (Meiklejohn 1960). Finally, the third sort of answer maintains that speech must be free in order for persons to be genuinely autonomous by deciding for themselves what to think and do. If the state limits expression, then we are prevented from even considering some possibilities when deciding what to do and think. In this way then, the free expression of ideas is a requirement of autonomy (Scanlon 1972). As one can see, there are really two important questions about value here. First, what is so valuable about speech and, second, what is so valuable about the alleged good (e.g. truth, democracy, autonomy) that speech seems to serve? Another important question concerns what counts as speech for the purposesof a free speech principle. To exactly which class of actions will the special protections be extended? One might think that the answer to this question is straightforward: Everything that is speech (in the ordinary sense) is harder to regulate because of the special protections extended to it in virtue of a free speech principle. Although this answer is simple and intuitive, it is not correct. To see this, notice that burning a flag or wearing an armband, for example, is not speech in the ordinary sense but such actions do count as speech for the purposes of a free speech principle. Moreover, plenty of speech in the ordinary sense (e.g. “I hereby hire you to kill my boss” or “It is henceforth against company policy to hire women”) is regulated without raising any free speech concerns at all. Although this is a somewhat controversial way to put the point, it seems that such utterances do not even count as speech for the purposes of a free speech principle. When it comes to free speech then, the word “speech” seems to be being used in a special technical sense and this raises a question about precisely what this special technical sense is. Unfortunately, only a handful of scholars have explicitly addressed this question (Greenawalt 1989; Braddon-Mitchell and West 2004; Schauer 2004; Maitra and McGowan 2007). Despite the neglect of this question, this much seems clear. This question (about what counts as speech) is related to the above question (about what makes speech valuable). In particular, it seems that what ought to count as speech should have the property (or properties) that make speech valuable in the first place.