Arguing for Freedom of Expression: I. Mill and Consequentialism (Part 1/2)
This is a new series on Free Expression, concentrating on asking how we might go about arguing for free speech. My previous series (Part 1, Part 2, Part 3, Part 4) outlined what we mean when we talk about freedom of expression, so if you haven’t read it yet (and find the concept of free expression to be ill-defined) then feel free to do so, as this series is really a continuation of the previous one.
Mill’s classic defence of freedom of expression in On Liberty1 provides a strong basis for our consequentialist approach. He characterises the issue as concerning the conflict between true and false ‘opinions’. Firstly, he says, we cannot be sure whether an opinion is true or false. So if we stifle an opinion we believe to be false, we may inadvertently be stifling a true one. Mill does not really argue for the value of permitting true opinions; he takes it as self-evident that true opinions are always to be allowed simply because we desire to know what is true. However, this may not be as uncontroversial as Mill believes. For example, if somebody publishes a set of instructions of how to make an improvised explosive device designed to cause mass slaughter, the truth of their opinions (as to whether the instructions would create an effective bomb) does not seem to be an important factor in whether we want to permit these instructions from being circulated. In fact, it might be truth that makes us more likely to censor them – an effective bomb is worse than an ineffective one!
There are other similar cases. Suppose we discover some scientific evidence that might cause some racists to wrongly believe that it lends support to their views. We cannot trust them to understand the is/ought distinction, and so we choose to conceal the data from the public eye in order to prevent undesirable outcomes. We might want to weigh the value of the scientific progress granted by this discovery against the worrying outcomes we project that it might generate. When we argue from the consequences of a particular action, we are therefore required to weigh the various effects of permitting the speech against each other. This weakens the principle of freedom of expression, as it is always contingent on there being no greater evils caused by allowing a particular opinion than by restricting that opinion. It will always be an open question with a degree of subjectivity. How would we weigh up the evil of restricting an opinion against the evil of allowing the the undesirable consequences arising from our permitting it? There is no easy answer to this of course, but there are reasons other than consequentialist ones for preferring to leave the expression unregulated such as the rights-based reasons (more later) and these may lend extra weight to our desire to limit regulation.
If we suppress a false opinion, according to Mill, we suffer harmful consequences. True opinions themselves benefit from their ‘collision with error’ (as he puts it) in many ways. Firstly, suppressing false opinions denies their opposite true opinions from being discussed in such a way as to bring out their strength and ‘life’. By discussing our views openly and honestly we ‘bring out’ the truth by seeing which arguments stand on their own merit and which crumble to dust the moment they meet an objection.
Secondly, allowing false opinions actually justifies us in holding true opinions:
“He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. The rational position for him would be suspension of judgement…”2
Thirdly, if we are sure that the opinion we are censoring is false, it may not be wholly false, and may contain some element of truth. If we consider our belief to be true, and censor all other opinions, we may end up missing out on an opportunity to refine our truth – to make it more true3. For instance, if we define a term we are using in a particularly loose way such that it ends up capturing more than we would be content to allow, then by exposing it to counter-argument and objections we are sure to encounter this flaw and tighten up our definition accordingly. This is the strongest part of Mill’s argument. For Mill, truth is all-important but it is not whether an opinion is true that is the grounds of whether or not it should be permitted, but rather that permitting views deemed false is a condition of us attaining the whole truth, and being justified in holding that opinion.
There are a few implications to Mill’s arguments. Firstly, rather than simply arguing for civil liberty, they may also be used to justify social liberty. If I write a letter to a newspaper which is deemed false and subversive, the editor of the newspaper has good reasons to publish it regardless. The presence of my letter would provide an opportunity to correct it, and demonstrate just why it is false. The fact that the newspaper permits dissenting opinions allows the truth to be re-examined and refined. Secondly, there is a particular kind of act of expression that these arguments do not seem to apply to. Mill’s discussion on speech seems to omit some of what Kateb calls ‘worthless speech’. Kateb’s conception of worthless speech includes a few different categories, some of which Mill’s arguments can apply to, but what I have in mind are the categories of expression that are “stupid or base” or “in bad taste or trashy”4. Mill’s arguments seem concerned with competing ‘opinions’ with propositional content, and the consideration of their truth and falsehood. Consider the racist who hurls meaningless insults at members of racial minorities. These insults are examples of worthless expression. There does not seem to be any way this can help us refine our opinions as a result their ‘collision’ with such worthless expression; indeed such expression does not seem to be an opinion at all, in the sense of being a claim the truth of which can be examined and evaluated. It may betray an opinion that the racist holds, such as prejudice against particular racial groups and so on, but it does not in itself contain any content that can have the effect that Mill ascribes to other kinds of false opinion. An abusive slur is usually neither true nor false; it is simply a term used to attack other people. Similarly, non-verbal acts of expression like cross-burning by the Ku Klux Klan and the Koran-burning mentioned earlier are mere acts of intimidation, and not things that can be rigorously mooted and considered as a possible ‘truth’. It seems that if we want to prohibit such acts, there is nothing in Mill’s argument that really justifies any opposition to such prohibitions.
1 Mill, J.S., (2008), On Liberty and Other Essays. Oxford: OUP
2 Ibid. pp. 42
3 Ibid. pp. 52-53
4 Kateb, G., (1989). “The Freedom of Worthless and Harmful Speech,” in Liberalism without Illusions: Essays on Liberal Theory and the Political Vision of Judith N. Shklar, ed. Bernard Yack, Chicago: University of Chicago Press. pp. 224