Free Speech: Liberty and License

Nigel Warburton is a Senior Lecturer in Philosophy at the Open University, as well as the author of a number of bestselling books on the subject. Below is an excerpt from his latest book, Free Speech: A Very Short Introduction, on liberty versus licence to say what you want.

Defenders of free speech almost without exception recognize the need for some limits to the freedom they advocate. In other words, liberty should not be confused with licence. Complete freedom of speech would permit freedom to slander, freedom to engage in false and highly misleading advertising, freedom to publish sexual material about children, freedom to reveal state secrets, and so on. Alexander Meiklejohn, a thinker who was particularly concerned to nurture the sorts of debates that are fruitful for a democracy made this point:

When self-governing men demand freedom of speech they are not saying that every individual has an unalienable right to speak whenever, wherever, however he chooses. They do not declare that any man may talk as he pleases, when he pleases, about what he pleases, about whom he pleases, to whom he pleases.

This is important. The kind of freedom of speech worth wanting is freedom to express your views at appropriate times in appropriate places, not freedom to speak at any time that suits you. Nor should it be freedom to express any view whatsoever: there are limits.

John Stuart Mill, the most celebrated contributor to debates about the limits of individual freedom, despite advocating considerably more personal freedom than most of his contemporaries were comfortable with, set the boundary at the point where speech or writing was an incitement to violence. He was also clear that his arguments for freedom only applied to ‘human beings in the maturity of their faculties’. Paternalism – that is, coercing someone for their own good – was in his opinion appropriate towards children, and, more controversially, towards ‘those backward states of society in which the race itself may be considered in its nonage’. But it was not appropriate towards adult members of a civilised society: they should be free to make their own minds up about how to live. They should also be free to make their own mistakes.

Judge Oliver Wendell Holmes Jr’s memorable observation that freedom of speech should not include the freedom to shout ‘Fire!’ in a crowded theatre captures an important point that is easily ignored when rhetoric about freedom takes over: defenders of freedom of speech need to draw a line somewhere. The emotive connotations of the word ‘freedom’ should not blinker us to such an extent that we forget this. Allowing someone to shout ‘fire’ in a crowded theatre might cause a stampede resulting in injury or even death, and a hoax might also undermine theatregoers’ reactions to a genuine cry of ‘fire’. Holmes made his comment in a Supreme Court judgement (Schenck v United States) relating to the First Amendment. He gave this judgement in 1919, but the offending act, printing and circulating 15,000 anti-war leaflets to enlisted soldiers during wartime, took place in 1917. The pamphlets declared that the drafting of soldiers was a ‘monstrous wrong against humanity in the interest of Wall Street’s chosen few’. For Holmes the context of any expression in part determined whether it could justifiably be censored. While this expression of ideas might have had First Amendment protection in peacetime, the same ideas expressed during a war should be treated differently and did not merit that protection. Here the war effort could have been seriously undermined, so Holmes declared these special circumstances justified a special restriction on freedom:

The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no court could regard them as protected by any constitutional right.

Holmes, like Mill, was committed to defending freedom of speech in most circumstances, and explicitly defended the value of a ‘free trade in ideas’ as part of a search for truth: ‘the best test of truth,’ he maintained, ‘is the power of the thought to get itself accepted in the competition of the market’. Holmes wrote passionately about what he called the ‘experiment’ embedded in the US Constitution arguing that we should be ‘eternally vigilant’ against any attempt to silence opinions we despise unless they seriously threaten the country – hence the ‘clear and present danger’ test outlined in the quotation above. Holmes as a judge was specifically concerned with how to interpret the First Amendment; his was an interest in the application of the law. Mill in contrast was not writing about legal rights, but about the moral question of whether it was ever right to curtail free speech, either by law, or by what he described as the tyranny of majority opinion, the way in which those with minority views can be sidelined or even silenced by social disapproval.

Both Mill and Holmes, then, saw that there had to be limits to free speech and that other considerations could on occasion defeat any presumption of an absolute right (legal or moral) to freedom of speech. Apart from the special considerations arising in times of war, most legal systems which broadly preserve freedom of speech still restrict free expression where, for example, it is libellous or slanderous, where it would result in state secrets being revealed, where it would jeopardize a fair trial, where is involves a major intrusion into someone’s private life without good reason, where it results in copyright infringement (e.g. using someone else’s words without permission), and also in cases of misleading advertising. Many countries also set strict limits to the kinds of pornography that may be published or used. These are just a selection of the restrictions on speech and other kinds of expression that are common in nations which subscribe to some kind of free speech principle and whose citizens think of themselves as free.

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