A "free speech zone" at the 2004 Democratic National Convention
The hypothetical free-speech booths in this week's thought experiment are little less than an obvious authoritarian trap, offering little more freedom of expression than the soundproof constructions within our minds. It's clear that they are useless and would go unused, but they do bring up a subject that contains several interesting points for discussion so let's get jump right into it.
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Announcement on the official state news.
"Comrades! Our People's Republic is a triumphant beacon of freedom in the world, in which the workers have been liberated from their slavery! In order to defeat the bourgeois foe, it has been necessary up until now to outlaw talk which may stir up dissent and reverse our triumphant revolution. It has never been our intention to limit free speech forever, and recently more people have been asking whether the time will soon be right to make the next great leap forward.
"Comrades, our dear leader has decreed that now is indeed the time! The bourgeois has been defeated and humbled, and now our dear leader offers us the gift of free speech!
"From Monday, if anyone wishes to say anything at all, even wicked lies critical of the People's Republic, he or she may do so, simply by visiting one of the new free speech booths being erected around the country! You may enter these soundproof constructions, one at a time, and say whatever you wish! No more can people complain that there is no free speech!
"Seditious lies uttered outside the booths will continue to be punished in the usual ways. Long live the revolution and our beloved leader!"
Source: Free Speech by Alan Haworth, 1998.
Baggini, J., The Pig That Wants to Be Eaten, 2005, p. 97.
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The freedom of speech has a long history that "predates modern international human rights instruments. It is thought that ancient Athens’ democratic ideology of free speech may have emerged in the late 6th or early 5th century BC [and] the values of the Roman Republic included freedom of speech." In the United States, this freedom is enshrined in our very first amendment. It's a freedom that may vary widely in its details from one nation to another, but has generally been accepted around the world in principle, as exhibited by Article 19 of the Universal Declaration of Human Rights, which states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.
Wherever there is such common agreement, a subject quickly becomes banal, but there are of course many limitations on free speech, and that's where things get interesting. Restrictions are commonly placed on free speech in regard to such matters as: "libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, non-disclosure agreements, right to privacy, right to be forgotten, public security, public order, public nuisance, campaign finance reform, and oppression." These curtailments are generally justified whenever the freedom of speech conflicts with other values or rights. The negative details of these conflicts were first discussed in 1859 by the philosopher John Stuart Mill, in a passage from On Liberty that formed the basis for what eventually came to be known as the "harm principle." As I wrote in my profile of Mill*:
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Mill’s works on liberty justified freedom of the individual in opposition to unlimited state control. One argument that Mill develops further than any previous philosopher is the harm principle. The harm principle holds that each individual has the right to act as he wants, so long as these actions do not harm others. He does argue, however, that individuals should be prevented from doing lasting, serious harm to themselves or their property. Because no one exists in isolation, harm done to oneself also harms others, and destroying property deprives the community as well as oneself. This limited definition of liberty is correct. Unfortunately, many libertarians do not recognize their ties to society. We must be given the freedom to discover our own best roles for society, but we cannot be allowed to endanger society or the survival of life in general.
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In other words, many of the people shouting "don't tread on me!" are not paying attention to what they themselves are treading upon. But just how gently must one tread? The American political and legal philosopher Joel Feinberg wrote in 1999 about the Collapse of the Harm Principle and offered up an "offense principle" to replace it. He argued that "the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm."
We may all agree that maliciously screaming "Fire!" in a crowded nightclub can cause sufficient harm that such speech acts should be prohibited. But just how far can the bar be lowered from there? For physical damage to people, we demand evidence of harm such as bruising, cuts, or broken bones. But where is the similar evidence for a bruised, cut, or broken psyche? The body will generally heal in a matter of months from slight injuries, but our minds are capable of carrying around slights for the rest of our lives. Minds can be more resilient though too, with Stoics such as Marcus Aurelius reminding himself that:
I shall meet today ungrateful, violent, treacherous, envious, uncharitable men. All of these things have come upon them through ignorance of real good and ill... I can neither be harmed by any of them, for no man will involve me in wrong, nor can I be angry with my kinsman or hate him; for we have come into the world to work together.
In a recent article in The Atlantic, Greg Lukianoff and Jonathan Haidt detailed how a tide of people have been claiming they have been harmed by words and have therefore called for the bar of offensive speech to be lowered too far, putting us in danger of a great Coddling of the American Mind. Lukianoff and Haidt drew on the common psychological practice of exposure therapy to make the persuasive claim that this is actually counterproductive. As a great advocate for strengthening our minds using cognitive behavioural therapy and philosophical counselling, I'm inclined to agree with Lukianoff and Haidt that lowering the bar of offensive speech too far puts us at risk of much greater damage over the long term—it puts us at risk of falsely believing that words and thoughts actually can hurt us irreparably, when really they can only do so if we let them.
So to me, the limitations of free speech should be held to the higher standard of the harm principle. As distasteful as I find members of the Westboro Baptist Church or the KKK or preachers of Sharia law, I think these people have the right to offend us. Now, our ears should have the right not to hear them, so I don't think these people have the right to shout their beliefs (to be a public nuisance) towards others who are merely trying to go about their daily lives, but if people just want to speak their beliefs or share them in writing, they should be free to do so. I must caveat that, however, by pointing out how the line to harm can easily be crossed. When evangelists of any kind spout provably false claims in the hopes of recruiting members to their cause under false pretenses (which would materially harm their lives), such false speech should be restricted, just as it is within advertising laws. This is how I think a number of European countries that are generally considered strong upholders of freedom of speech can manage to correctly outlaw speech that might be interpreted as Holocaust denial. This is also how I think Fox News and other politicians who repeatedly fall afoul of Politifact's "pants on fire" index should be at risk of having their own speech curtailed.
Going the other direction, I would also like to reexamine the perceived harm caused by obscenities, which to me are really just running afoul of the "offense principle." Where is the actual harm coming from the use of these phrases? In the United States, judges use something called the Miller Test to determine "whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited." The Miller Test arose from the 1973 case Miller v. California and has three parts that must ALL be satisfied for a work to be considered obscene:
I could probably go on about other areas where free speech should or should not be free, but that might harm you from enjoying the rest of your day. What do you think? Do you disagree with me on these points or want to raise any others? Feel free to do so any way you'd like.
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* As a reminder, during my Survival of the Fittest Philosopher profiles, I used italic text for information from the philosopher's wikipedia entry and plain text for my own analysis of that information.
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Announcement on the official state news.
"Comrades! Our People's Republic is a triumphant beacon of freedom in the world, in which the workers have been liberated from their slavery! In order to defeat the bourgeois foe, it has been necessary up until now to outlaw talk which may stir up dissent and reverse our triumphant revolution. It has never been our intention to limit free speech forever, and recently more people have been asking whether the time will soon be right to make the next great leap forward.
"Comrades, our dear leader has decreed that now is indeed the time! The bourgeois has been defeated and humbled, and now our dear leader offers us the gift of free speech!
"From Monday, if anyone wishes to say anything at all, even wicked lies critical of the People's Republic, he or she may do so, simply by visiting one of the new free speech booths being erected around the country! You may enter these soundproof constructions, one at a time, and say whatever you wish! No more can people complain that there is no free speech!
"Seditious lies uttered outside the booths will continue to be punished in the usual ways. Long live the revolution and our beloved leader!"
Source: Free Speech by Alan Haworth, 1998.
Baggini, J., The Pig That Wants to Be Eaten, 2005, p. 97.
---------------------------------------------------
The freedom of speech has a long history that "predates modern international human rights instruments. It is thought that ancient Athens’ democratic ideology of free speech may have emerged in the late 6th or early 5th century BC [and] the values of the Roman Republic included freedom of speech." In the United States, this freedom is enshrined in our very first amendment. It's a freedom that may vary widely in its details from one nation to another, but has generally been accepted around the world in principle, as exhibited by Article 19 of the Universal Declaration of Human Rights, which states that:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers.
Wherever there is such common agreement, a subject quickly becomes banal, but there are of course many limitations on free speech, and that's where things get interesting. Restrictions are commonly placed on free speech in regard to such matters as: "libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, non-disclosure agreements, right to privacy, right to be forgotten, public security, public order, public nuisance, campaign finance reform, and oppression." These curtailments are generally justified whenever the freedom of speech conflicts with other values or rights. The negative details of these conflicts were first discussed in 1859 by the philosopher John Stuart Mill, in a passage from On Liberty that formed the basis for what eventually came to be known as the "harm principle." As I wrote in my profile of Mill*:
-----------------
Mill’s works on liberty justified freedom of the individual in opposition to unlimited state control. One argument that Mill develops further than any previous philosopher is the harm principle. The harm principle holds that each individual has the right to act as he wants, so long as these actions do not harm others. He does argue, however, that individuals should be prevented from doing lasting, serious harm to themselves or their property. Because no one exists in isolation, harm done to oneself also harms others, and destroying property deprives the community as well as oneself. This limited definition of liberty is correct. Unfortunately, many libertarians do not recognize their ties to society. We must be given the freedom to discover our own best roles for society, but we cannot be allowed to endanger society or the survival of life in general.
-----------------
In other words, many of the people shouting "don't tread on me!" are not paying attention to what they themselves are treading upon. But just how gently must one tread? The American political and legal philosopher Joel Feinberg wrote in 1999 about the Collapse of the Harm Principle and offered up an "offense principle" to replace it. He argued that "the harm principle sets the bar too high and that some forms of expression can be legitimately prohibited by law because they are very offensive. But, as offending someone is less serious than harming someone, the penalties imposed should be higher for causing harm."
We may all agree that maliciously screaming "Fire!" in a crowded nightclub can cause sufficient harm that such speech acts should be prohibited. But just how far can the bar be lowered from there? For physical damage to people, we demand evidence of harm such as bruising, cuts, or broken bones. But where is the similar evidence for a bruised, cut, or broken psyche? The body will generally heal in a matter of months from slight injuries, but our minds are capable of carrying around slights for the rest of our lives. Minds can be more resilient though too, with Stoics such as Marcus Aurelius reminding himself that:
I shall meet today ungrateful, violent, treacherous, envious, uncharitable men. All of these things have come upon them through ignorance of real good and ill... I can neither be harmed by any of them, for no man will involve me in wrong, nor can I be angry with my kinsman or hate him; for we have come into the world to work together.
In a recent article in The Atlantic, Greg Lukianoff and Jonathan Haidt detailed how a tide of people have been claiming they have been harmed by words and have therefore called for the bar of offensive speech to be lowered too far, putting us in danger of a great Coddling of the American Mind. Lukianoff and Haidt drew on the common psychological practice of exposure therapy to make the persuasive claim that this is actually counterproductive. As a great advocate for strengthening our minds using cognitive behavioural therapy and philosophical counselling, I'm inclined to agree with Lukianoff and Haidt that lowering the bar of offensive speech too far puts us at risk of much greater damage over the long term—it puts us at risk of falsely believing that words and thoughts actually can hurt us irreparably, when really they can only do so if we let them.
So to me, the limitations of free speech should be held to the higher standard of the harm principle. As distasteful as I find members of the Westboro Baptist Church or the KKK or preachers of Sharia law, I think these people have the right to offend us. Now, our ears should have the right not to hear them, so I don't think these people have the right to shout their beliefs (to be a public nuisance) towards others who are merely trying to go about their daily lives, but if people just want to speak their beliefs or share them in writing, they should be free to do so. I must caveat that, however, by pointing out how the line to harm can easily be crossed. When evangelists of any kind spout provably false claims in the hopes of recruiting members to their cause under false pretenses (which would materially harm their lives), such false speech should be restricted, just as it is within advertising laws. This is how I think a number of European countries that are generally considered strong upholders of freedom of speech can manage to correctly outlaw speech that might be interpreted as Holocaust denial. This is also how I think Fox News and other politicians who repeatedly fall afoul of Politifact's "pants on fire" index should be at risk of having their own speech curtailed.
Going the other direction, I would also like to reexamine the perceived harm caused by obscenities, which to me are really just running afoul of the "offense principle." Where is the actual harm coming from the use of these phrases? In the United States, judges use something called the Miller Test to determine "whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited." The Miller Test arose from the 1973 case Miller v. California and has three parts that must ALL be satisfied for a work to be considered obscene:
- Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
I could probably go on about other areas where free speech should or should not be free, but that might harm you from enjoying the rest of your day. What do you think? Do you disagree with me on these points or want to raise any others? Feel free to do so any way you'd like.
-------------------------------------
* As a reminder, during my Survival of the Fittest Philosopher profiles, I used italic text for information from the philosopher's wikipedia entry and plain text for my own analysis of that information.
