My motivation for a series on free speech is that I see the term being used in a variety of ways; usually all rather confused. ‘Free speech’ as I understand it (and the sort I want to vigorously defend) is the idea protected by the First Amendment, and it is the thing violated by these absurd convictions. These next few posts will provide a definition of free expression that I think is a defensible one. I will then write a series arguing in favour of it.
Freedom of expression is a negative liberty
Consider two examples:
- Susan, a republican, believes that the monarchy should be abolished. As part of her efforts to turn others against the idea of having a monarchy, she criticises the reigning monarch as being a drain on public finances. She publishes this claim on her website. She is then ordered by the state to take down the claim from her website, and pay a fine as punishment.
- Andrew believes that immigration is ‘out of control’, and wishes to express this thought in order to try to convince others. He demands that, in the spirit of democracy, the state should ensure that he is given a slot on public television, so that this opinion is adequately represented and disseminated. The state refuses to act on his demands.
In both cases the ‘freedom’ of each speaker is in some way affected by the action or inaction of the state. Both speakers might have a legitimate claim that their freedom of expression is limited; Susan is punished for stating her opinion and Andrew is denied an opportunity to speak on television. While not being able to speak on television is a problem for Andrew resulting in his opinion being less widely disseminated that it would have otherwise been, the state has not actually acted at all. The outcome is indistinguishable from what it would have been if there was no state at all. Andrew lacked the ‘liberty’ to speak on television; the liberty in this sense is a positive liberty1, i.e. the provision of the relevant means to achieve his goal. In Susan’s case, the state did intervene, and it was that intervention that curtailed her liberty to express herself how she wished. In contrast to Andrew’s case, Susan lacked the negative liberty to publish her opinions without breaking the law. Where there is negative liberty, there is no positive action by the state, and vice versa.
There might be some reasons why, in certain situations we should have positive freedom of expression. In Andrew’s case it was proposed that ensuring that he was able to speak on television would promote a fairer democratic process, as his view would be placed on the table for consideration. There are difficulties with this idea, of course (should every view be heard, or just ‘respectable’ ones, and how do we decide which ones are ‘respectable’? And so on.). Difficulties aside, if we wanted to base our conception of liberty on the positive sense and argue for freedom of expression, we would soon run into necessary limits. Self evidently we could not have a state with the resources to provide a major platform for everyone any time they wish to express their opinion, and the more of these platforms that exist, the less prominent they are. It would be self-defeating. What might be called ‘freedom of expression’ in this positive sense is therefore not a position I think is defensible, at least not in any absolute sense.
On the other hand, I believe that in the first case Susan was treated unjustly. Her freedom to express her republican opinions publicly at all was removed. The state positively intervened to silence her voice, and limited her negative freedom to express herself as she wished. This is the kind of freedom that hate speech and public order laws have an impact on, and I do think it is defensible. I will therefore defend negative freedom of expression in this series.
1 Berlin, I., 1969, ‘Two Concepts of Liberty’, in I. Berlin, Four Essays on Liberty, London: Oxford University Press. New ed. in Berlin 2002.