Free Speech. Jonathan Seglow
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and anarchy … Whether it is the mob on the street, or the cancel culture in the boardroom, the goal is the same: to silence dissent, to scare you out of speaking the truth and to bully Americans into abandoning their values.’3 The contentiousness of the debates that followed these and similar incidents renders the theoretical analysis of freedom of speech, and of its permissible limits, both necessary and urgent.
Asking why exactly free speech should be protected is not a redundant task. Free speech informs the political world in which we live. Most liberal democracies have the right to free speech enshrined in their constitutions and bills of rights – the US First Amendment is the most famous example. Even many non-democratic states pay lip service to free speech, though they may not always respect it in practice. The UN Declaration of Human Rights gives a prominent place to free speech, as does the European Convention on Human Rights, along with other declarations and charters. But all these documents are, essentially, the expression of our shared attachment to the value of free speech among other basic liberties; they do not tell us why free speech is among their clauses or articles and why those who drafted constitutions and the like thought it important to include free speech in the first place. After all, constitutions can get it wrong, or at least contain principles that are highly contested. It is controversial, for example, whether Americans really have a human, as opposed to a constitutional, right to carry a weapon, and until 2018 it was unconstitutional in Ireland for women to seek an abortion.
That people do not often reflect on these questions is also evident from our everyday experience. For example, when we ask students, during lectures or seminars, whether and why hate speech laws or other forms of censorship are wrong, a response we often receive is: ‘Of course these are wrong, they violate free speech!’ But when pressed to explain why there should be free speech in the first instance, students often find it harder to articulate good arguments in support of it; they often seem to assume that the value of free speech is somehow self-evident. This assumption risks transforming our commitment to free speech into an ideological dogma and leaves little room for justifying the regulation of certain kinds of speech, even when we find them intuitively abhorrent.
We have an interest in knowing why free speech is significant both because we would benefit from articulating the common intuition that it is and because free speech may be limited by laws and regulations – or, less formally, by the power of social sanction (as when someone fears the stigma of expressing an unpopular view); and, if these limits come up against the value of free speech, we want to know what that value is. Perhaps free speech is not actually valuable in some circumstances, where it is limited – hate speech may be one example – but, again, establishing this requires an understanding of what its value is in the first place.
In exploring this question, it is worth noting in the first place that speech may actually be limited in all sorts of ways that are not at all controversial. Bribery, perjury, harassment, discrimination, plagiarism, copyright violations, selling state secrets, price fixing, insider trading, defamation and threatening somebody with a weapon are illegal in most jurisdictions, but, because we are communicative creatures, they all involve speech in some way. So why should we not be free to engage in them? The basic answer is that these are all forms of wrongful conduct, not just speech. But the distinction between speech and conduct is far from simple. After all, if someone offers you a job, warns you that there is traffic ahead, or says that she wants to divorce you, she is also acting in various ways, not simply speaking, even though these are all perfectly legitimate instances of free speech. By contrast, wrongful conduct invades people’s autonomy, violates their rights, puts them at risk, arbitrarily treats some worse than others, and so on; and in such instances speech is inextricably bound up with these harms. As we will see in cases where free speech is controversial, those who argue for limits argue precisely along these lines: they point out that speech involves some sort of harm or injustice, for example that hate speech invades autonomy or that pornography is an act of subordinating women.
‘Speech’ in the phrase ‘free speech’ is a term of art and does not actually refer to all speech. For one thing, beyond the public square and people’s homes, all institutions police free speech norms that enable them to achieve their purposes. Thus a political party can expel a member who failed to honour its basic ideological commitments; a company can reprimand an employee who helped the competition; or a church can refuse to recognise a worshipper who rejected its central religious tenets. (This aspect will become especially relevant when we discuss free speech in universities in Chapter 6.)
In general, the kind of speech that free speech advocates regard as most important to protect is that of people who express themselves on moral, political, cultural, religious, historical, literary, scientific and similarly weighty issues, especially within a public or an associational setting – as opposed to speech among friends, family and other intimates that states are not generally interested in regulating (though there are exceptions). The former is often called ‘high-value’ speech. By contrast, ‘low-value’ speech is public or associational speech that has implications for people in that it can affect their interests in ways that might be normatively troubling. Examples of this kind of speech are libel, slander and defamation; invasion of privacy; commercial advertising; abusive, insulting and offensive speech; hate speech; and pornography. But, although the high-value–low-value distinction is often invoked in free speech debates and we will employ it ourselves later on, it is important to remember that this is not a stable distinction either. One person’s serious artistic expression may be another person’s pornography, for example.
In this book we elaborate on these sorts of considerations in order to address the complex dimensions of free speech. In Chapter 1 we examine the three ‘classic’ theories of free speech, grounded in the values of truth, autonomy and democracy. We identify different strands within each theory, consider some of the main criticisms that have been raised against each one of them and comment on their relationship to one another. This three-part framework informs our analysis throughout the subsequent chapters by providing some normative guidelines for assessing when the regulation of free speech may be morally permissible, or even obligatory.
Chapter 2 examines the much debated topic of hate speech. As well as asking what hate speech is, we consider various contexts in which this kind of speech manifests itself and illustrate some different ways in which it is regulated in different jurisdictions. We discuss what implications the truth, autonomy and democracy arguments have for hate speech, then go on to consider further arguments in favour of hate speech regulation. We also examine the complex issues surrounding the design of laws that restrict hate speech and we consider non-regulatory responses to such laws, including counterspeech.
In Chapter 3 we focus on Holocaust denial as an exemplary case of speech whose limitations are often subject to debate. While often considered a form of hate speech, Holocaust denial presents distinctive challenges. Given the central role that epistemic historical claims play in it, we consider in some detail the implications of the truth argument for its regulation. Yet Holocaust denial also raises important questions regarding individual autonomy and democracy. We explore the former especially in relation to educational settings and online platforms, and the latter by considering the role of Holocaust denial within broader political worldviews.
Chapter 4 examines offensive speech. Although it is sometimes conflated with hate speech, more often than not offensive speech is considered a much less harmful kind of speech. But what, if anything, is wrong with it? After sketching a brief account of the origins of offence in blasphemy law, we address this question by identifying moral, conventional and raw offence and by analysing the first two categories in relation to the truth, autonomy and democracy arguments for free speech. We conclude by discussing Joel Feinberg’s (1985) influential defence of regulating offensive speech and point to some problems with it.
In Chapter