Arguing for Freedom of Expression: II. Freedom of Expression as a Right
There are many theories of rights that might be used to justify freedom of expression. As Yong notes, these tend to fall into two main categories; arguments from ‘citizen participation in democratic self-government’ and arguments from a ‘right to autonomy’1. While I think that there is some value in the former category, I do not think that it serves my purpose as well as the latter. Of course, for a democracy to function effectively, there needs to be a high degree of freedom of expression. Certainly political beliefs should not be restricted, as this would strongly undermine the notion that citizens may participate in the democratic system freely, and vote for whoever they want. As Yong points out, this approach tends to “privilege political speech”2. This is suggested by the idea, but it seems right to say that everyday facts opinions feed into our political decisions, so while some form of expression may not be explicitly political it may still have political consequences. For instance, if I believe that ‘Intelligent Design’ is really a veiled attempt at making Biblical Creationism seem more scientific and respectable then this may inform my political decisions, such as that Intelligent Design should be prohibited from being taught in state school science classes. That said, as I considered above, there are forms of expression that are worthless, and this includes being worthless in any political sense as well. It seems to me that the ‘democratic participation’ argument will only justify the coverage of freedom of expression that the consequentialist arguments justified, and so I will prefer the latter approach; the right to autonomy.
I do not wish to consider the nature of rights per se as it is beyond the scope of this essay. I take it that there is almost universal agreement that the state interfering in our thoughts would violate our rights in some way, and so when I talk about the state restricting expression as violating our rights then I am talking about the same sort of ‘rights’. It interferes with our ‘autonomy’ as human beings to make decisions for ourselves, and our rights signify our our entitlement to be free from such interference. Of course, there are other kinds of rights but this conception will do for my purposes. What do I mean by ‘autonomy’? To borrow another definition from Scanlon, ‘autonomy’ in this context may be defined in the following way:
To regard himself as autonomous in the sense I have in mind a person must see himself as sovereign in deciding what to believe and in weighing competing reasons for action.3
This gives us a general idea, but prima facie it is consistent with restrictions on certain kinds of expression, as we may be ‘sovereign in deciding what to believe’ while not being able to express that belief. However the implications of this idea do impact on the state’s right to restrict speech. After all, for us to be truly ‘sovereign in deciding what to believe’, nobody else must forcibly interfere with our freedom to make the decision, which includes preventing access to ideas that might influence that decision in some way. For Scanlon, this is what the state is doing when it restricts the speech of others. If an idea is prevented from being expressed, then those who do not encounter that idea are not at liberty to consider that idea for ourselves. It creates an environment where that idea is suppressed and unheard, and therefore it is more improbable that the idea will be an option that one can weigh up when forming their beliefs. So rather than interfering with the autonomy of the speaker, on this view the state is interfering with the autonomy of the listener.
I think there is a strength and a weakness in this idea. The strength is that the state deciding what it is that we should or should not hear is to my mind paternalistic in a way that we should find objectionable. I will not go into much detail about the idea of paternalism here as it is a complicated issue all by itself. I do think however that it is a very common intuition (and one I share) utterly central to the idea of liberalism; that the state has no place trying to shape our thoughts and beliefs. Of course by restricting expression this influencing of our beliefs is indirect, just as when one tries to convince another to adopt her belief by defending it with reason and argument, but unlike the art of persuasion depriving one of facts on which they may base their beliefs interferes in an objectionable way with their autonomy. We have a similar intuition about state propaganda, which a government may use as a means of changing the views of the people. We find this objectionable because rather than trying to convince us to believe something with reason, it tries to tell us what it is we should be believing. Contrast this with a kind of paternalism that is not as objectionable (in my view); anti-smoking advertisements, which are an attempt to disseminate information about the harmful effects of smoking so that we are in a position to make an informed choice. We are not required to believe that smoking is harmful, or that we should not do it. Yet if we were, and the government actively stifled the expression of those proposing that smoking is not harmful, presumably most of us would object on the grounds that it would interfere with our autonomy and our right to consider the issue for ourselves.
I think that the weakness in Scanlon’s idea argument is that, intuitively it is not the principal reason why the prohibition of certain forms of expression would interfere with our autonomy. I take it that even if all potential listeners agreed that they did not want to hear what I had to say, it would still be wrong to prevent me from saying it, or punish me for doing so. It seems plausible that the right to freedom of expression is speaker-based rather than listener-based. This requires us to consider another conception of autonomy. Baker contrasts two conceptions of autonomy; one is similar (though not identical) to that proposed by Scanlon, which he calls “meaningful autonomy”, and the other he calls “formal autonomy”:
The law respects formal autonomy to the extent that it meets two conditions. First, it must allocate ultimate control over a person’s mind, body, and property to that person, except when that person would use her body or property to interfere with another’s legitimate realm of decision-making control. Second, the law must not aim at eliminating or suppressing people’s freedom to make decisions about behavior or values. These requirements have clear implications for speech, namely, that a person should be able to decide for herself what to say.4
It is this control over our own behaviour that is fundamental to our human nature as “noncoerced moral agents”5. We each have our own thoughts and opinions and wish to express these on our own terms. We are, as Waldron puts it: “a locus of a point of view, an outlook on the world”6. By preventing us from expressing this outlook, an important part of our being is oppressed. This has a distinct advantage over Scanlon’s conception of autonomy. It is more in line with our intuitions about whose autonomy we are thinking of when we consider the stifling of expression by the state as being a violation of our rights. Scanlon’s idea seems to suggest that by putting a person in prison (say) for saying something illegal, the state would not be violating the rights of the speaker so much as those that might have listened to the speech, which seems to me to be implausible.
I think that the rights-based approach is a strong one; Baker’s arguments for expressive autonomy are plausible as they are, but they are further strengthened by Scanlon’s consideration of the would-be recipients of the expression. Therefore given the effect of the state restricting some of our expression on our autonomy, our rights should contain the freedom to express ourselves as we wish.
1 Yong, C., (2011) “Does Freedom of Speech Include Hate Speech?” Res Publica 17 (4):385-403. pp. 389
2 Ibid. pp. 392
3 Scanlon, T.M., (1972). “A Theory of Freedom of Expression”. Philosophy and Public Affairs, Vol. 1, No. 2. (Winter, 1972), pp. 215
4 Baker, C.E. (2004). “Autonomy and Informational Privacy, or Gossip: The Central Meaning of the First Amendment”. Social Philosophy and Policy 21 (2), pp. 225
5 Baker, C.E. (1997). Harm, Liberty and Free Speech. 70 S. Cal. L. Rev. 979, pp. 1019
6 Waldron, J. (2012) The Harm in Hate Speech. Cambridge, MA: Harvard University Press, pp. 162