Free Speech - Study Notes
FREE SPEECH by Nigel Warburton
Chapter 1 of Warburton’s book outlines some of the principal issues, problems and dilemmas that revolve around the topic of free speech. He starts with Voltaire’s famous quotation, ‘I despise what you say, but will defend to the death your right to say it’.
This encapsulates what is involved in saying that you believe in free speech. As Warburton puts it, commitment to free speech ‘involves protecting the speech you don’t want to hear as well as the speech that you do.’ This principle is, he says, at the heart of democracy and is ‘the mark of a civilized and tolerant society.’ He notes that free speech is sufficiently important to be protected in laws and declarations, for example the First Amendment to the U.S. Constitution, or Article 19 of the UN Universal Declaration of Human Rights.
Warburton’s book is more concerned to examine the questions of principle that lie behind the laws and the declarations. At the most obvious level, without the freedom to criticize and challenge governments, democracies may degenerate into tyrannies. This is of particular importance in a democratic society where a wide range of opinions can be freely heard, discussed and contested, enabling citizens to participate in political debate rather than simply being ‘passive recipients of policy delivered from above’, as Warburton puts it.
But as he says, ‘it is not just governments that restrict freedom of speech, and it is not just political speech that warrants protection.’ So, what is the importance of free speech in the first place? Basically, all human beings have an essential requirement in all aspects of their lives to communicate, to express themselves and to hear and read what others freely say.
However, there are complications. Some things can be more important than free speech per se, for example, as Warburton says, if national security is threatened, or if there is a risk of harm to children in some way. And as philosopher Thomas Scanlon has said, ‘what people can say can cause injury, can disclose private information, can disclose harmful public information. It’s not a free zone where you can do anything because nothing matters.’ We could add that there has always been a valid role in human affairs for confidentiality. If you’re a doctor, a lawyer or a bank manager ‘free speech’ does not mean you are at liberty to divulge private and confidential information about a client of yours to a third party without consent or unless you’re acting under a warrant or a subpoena. Tact and discretion are also important in our daily lives, and ‘freedom of speech’ is not an excuse for being gratuitously offensive. Nor is it an excuse for telling lies, rumour-mongering and so on.
Warburton points out that the difficulty lies in ‘framing the exceptions to the presumption of free speech in such a way that consistent application of the principle doesn’t permit less desirable censorship.’ And he continues, ‘every act of censorship tolerated makes further censorship easier to achieve.’
Warburton uses the term ‘free speech’ broadly, to cover a wide range of expression including the written word, plays, films, photographs, drawings, paintings, symbolic actions and so on, fiction as well as non-fiction. He also notes that throughout history, writers, artists and so on have faced far worse penalties than censorship.
But what does ‘free’ mean? Philosopher Isaiah Berlin distinguished between negative freedom and positive freedom. Negative freedom is simply the absence of prohibition. There are no laws against writing a 20 volume epic novel, so in this sense you are ‘free’ to do so (if you are so minded). Positive freedom by contrast is the ability and opportunity to achieve your desired objective. You may not be free to write your novel because you have other commitments such as your family or your job, but these are not a ‘denial’ of your freedom. In connection with free speech, then (and any other form of free expression), Warburton concentrates on ‘negative’ freedom, that is, the absence of rules, laws or any other form of prohibition against speaking (or writing, or publishing) freely.
Another important distinction is between liberty and licence. Complete freedom of speech would permit freedom to slander, to publish sexual material about children, to reveal state secrets on national security, to engage in false or misleading advertising, and so on. Warburton comments that emotive rhetoric about ‘freedom’ can be misleading. Just as freedom in the political sense does not mean the same as anarchy, there are limits on freedom of expression for valid reasons. Philosopher John Stuart Mill set the boundary at incitement to violence. American Judge Oliver Wendell Holmes said that freedom of speech should not include the freedom to circulate anti-war leaflets to enlisted soldiers during the emergency of wartime, or to shout ‘Fire!’ in a crowded theatre (which could cause panic and a stampede). Both Mill and Holmes were champions of free speech – within the limits of responsibility. But where exactly are these limits, where do you draw the line?
Warburton quotes the example of a book, Hit Man: A Technical Manual for Independent Contract Killers published in the USA in 1983 which provided the modus operandi for a multiple murder where three people were killed. Should the book have been published or not? Warburton does not commit himself to a clear ‘yes’ or ‘no’, but quotes it as an example of how finely balanced the arguments can be either way. The book outlined a methodology of killing, but was that the same thing as an incitement to kill? Books on physics and chemistry can provide you with enough knowledge to make bombs, but we don’t ban them. The Hit Man book, though, gave specific guidance on how to kill.
It is arguable that any curtailment of free expression should be contested as a potential slippery slope to totalitarianism. ‘Slippery slope’ arguments don’t always follow, but as a safeguard the UK may need a Bill of Rights of some sort, whilst the USA has its written constitution and its First Amendment. This too has difficulties of interpretation, but Warburton seems to be broadly in favour of this approach.
He looks again at the justification for free speech in the first place. The ‘instrumental’ argument (as he calls it) is that free speech and freedom of expression generally produce tangible benefits, the most obvious being that freedom of discussion and communication is essential for democracy to function effectively. It provides access to information, and promotes understanding of different points of view and opinion. We could add that science and philosophy would be impossible without free speech. The ‘moral’ argument for free speech is that denial of free speech amounts to an infringement of a person’s autonomy or dignity – a failure to respect the individual as a person capable of their own thoughts and decisions. This is a very compelling argument, although I think we can still query whether some people always exercise their autonomy responsibly.......
Warburton concludes Chapter 1 with the observation that in recent years the loudest calls for censorship come from those who feel their religion has in some way been insulted. He relates how the Islamic world reacted to the publication of The Satanic Verses by Salman Rushdie in 1988 and how it reacted to some satirical cartoons of Mohammed published by a Danish magazine in 2005. Interestingly there were some non-Moslems as I recall who also criticized the magazine for being somewhat injudicious.
In Chapter 2, entitled ‘A free market in ideas?’, Warburton starts with a summary of the views of 19th century philosopher John Stuart Mill. Mill’s book On Liberty (1859) ‘continues to dominate philosophical debate about free speech’. Mill’s view was that free speech ‘is a precondition not just for individual happiness, but for a flourishing society’. Free speech ‘maximizes the chance of truth emerging from its collision with error and half-truth’. Mill particularly defended ‘the toleration of a wide range of expressions of individuality’ as against ‘the tyranny of the majority’, so he was not only opposed to government intervention in free speech but also to social pressures upon individuals.
His approach was ‘consequentialist’, meaning that by preserving individual freedom and tolerating diversity, this would produce the best consequences, these being the overall maximization of human happiness and flourishing. Intervention would frustrate this process. Very important, however, is Mill’s ‘Harm Principle’, the idea that individual adults should be free to do whatever they wish up to but not including the point where they harm another person in the process. The only justification for interference with someone’s freedom is if they risk harming other people. Likewise the only point at which Mill draws a line at free speech is where it becomes an incitement to harm another person.
Mill regarded free speech as particularly important because of its relation to truth and human development. A ‘free market of ideas’, that is, debate and discussion, would increase the likelihood of finding the truth and eliminating error. Restrictions on free speech would undermine this process. He was particularly concerned that minority opinions should not be silenced or ignored simply because they are held by only a few. Sometimes a minority view, even if largely mistaken, can contain an element of truth which should not be overlooked. It is equally misleading to assume that something is true because a majority believe it is true. Majorities can sometimes be completely wrong (as in the days when most people believed the world was flat). Mill was suspicious, therefore, of orthodoxy per se.
Another pitfall he noted was the assumption of infallibility which often derives from a purely psychological feeling of certainty which does not in itself guarantee the truth of what we feel certain about. This particularly applies to religious faith: irrespective of feelings of certainty, it is a simple point of logic that for example monotheism (belief in one God) and polytheism (belief in many Gods) cannot both be true. Also, apart from questions of logic, truth and falsity are determined not by feelings but by observations.
But Warburton has certain reservations about Mill’s approach. It is not obvious when ‘a strongly voiced opinion shades into incitement to harm’, and many present-day writers would recognize that psychological harms can be ‘as personally damaging as physical ones’. Also, Mill’s arguments seem ‘inappropriately fixated’ on the truth or falsity of statements; but as Warburton says, truth ‘isn’t all that is at stake’. He goes on to say that ‘Mill’s vision doesn’t capture what typically happens in present-day disputes about free speech’ which are more often concerned with causing offence rather than literal truth or falsity.
However, he admits that Mill’s discussion of free speech does shed light on the question of ‘Holocaust denial’. In the early 1990s historian David Irving published a book, Churchill’s War, in which in a very unprofessional and unscholarly manner he ignored and skewed the evidence for the mass-murder by the Nazis of millions of Jews.2 His book was incisively criticized and refuted (that is, proved to be false) by historian Deborah Lipstadt in her book Denying the Holocaust (1994). But Irving sued Lipstadt and her publishers for libel. When it went to court her defence that Irving had ‘deliberately skewed the evidence’ was proved, so Irving’s libel case was dismissed. Warburton says this case illustrates one of Mill’s points about the value of free speech over restriction of speech. If Irving’s book had been banned, he might well have become a ‘martyr’ of some sort. But allowing it to be published enabled it to be refuted publicly, which was far more effective than banning it.
But most present-day disputes about free speech are more concerned with questions of respect or disrespect rather than truth or falsehood as such. Taking offence is a common response of religious groups to what they consider to be blasphemous. Debates about pornography are often about what is or is not offensive. Another issue which Mill did not appear to consider was the possibility that a viewpoint might be censored not because it was believed to be false but because it was true. This became common practice with the totalitarian regimes which appeared in the twentieth century.
Another area where modern opinion seems to differ from Mill concerns what Warburton calls ‘no platform’ arguments. Mill held that we should always seek to provide or facilitate a platform for those with whom we disagree. But many people now believe that ‘no platform’ such as television interviews etc. should be provided for organizations such as the BNP or for individuals such as David Irving. In my own opinion this raises an interesting question - who should decide who is to have a ‘platform’ or not, and by what criteria? And by what procedures? Maybe we already have the answer with the Irving book - allowing it to be published enabled it to be publicly refuted which was more effective than banning it.
In Chapter 3 Warburton concentrates on ‘Giving and taking offence’. He gives quite a good summary of the principal issues arising in the first couple of paragraphs of this chapter on pp42-43. It has been said by some that ‘free speech is only truly free speech if it is used responsibly’ so ‘an act of giving offence should not be protected by any free speech principle’. On the other hand critics say that this argument amounts to a denial of free speech. The point of free speech is that ‘it should protect a wide range of types of expression, including views we find offensive, irritating and with which we strongly disagree..... free speech is for bigots as well as polite liberal intellectuals’. Another point, I suppose, is that some people are prone to take offence at more or less anything.
To engage in self-censorship to avoid giving offence is to give in to ‘the heckler’s veto’, the notion that if someone in your potential audience is likely to be offended by what you say, you should not speak. But Mill’s view was explicit that curbing free speech was only appropriate when incitement to physical violence was involved. Although offensive speech can have ‘far-reaching effects’, this was insufficient in his view as a reason for preventing it.
Warburton spends most of this chapter considering blasphemy – only abolished as a common law offence in England and Wales as late as 2008. Interestingly it had only applied to the Church of England, so a Muslim could have been prosecuted for making disparaging comments about objects or ideas sacred to the Church of England, but a member of the Church of England would have been legally free to be blasphemous about Islam.
But many defenders of free speech and most secularists see blasphemy laws as a historical relic of an earlier age. Others argue that because religion is ‘profoundly important’ for some people, it should have special protection against verbal abuse. But there are difficulties with this view. Consistency requires that we should in principle have blasphemy laws protecting all religions, not just Christianity but also Islam, Judaism, Hinduism, Sikhism and so on. But as Warburton says, religious and quasi-religious groups each have a range of sacred objects, places, people, myths, beliefs etc. that they cherish, and ‘to protect all of them from blasphemous mention would be absurd to try and impossible to achieve’.
On the other hand, as Warburton notes, the original blasphemy laws only protected against offensive ways of expressing views hostile to Christianity, and this could easily be extended to other religions. Tony Blair proposed a law in 2005 against incitement to religious hatred which would have had the virtue of treating all religions equally, although Warburton does not say what became of that proposal. Another point Warburton could have made is that it is perfectly possible to criticize religion, or to advocate atheism or agnosticism (as I do) without using offensive language or imagery at all – so it isn’t necessary.
Also, if a play or a film combines hostility to religion with obscenity, for example, plenty of non-religious people too could find that objectionable, although I don’t think Warburton makes that observation. We can also understand objections to humour – people don’t like being laughed at, whether other people have a right to freedom of expression or not.
However, Warburton’s view is that creative artists and others should not tiptoe around religious sensitivities and beliefs which should not be held as sacrosanct and immune from criticism. ‘A spirit of toleration should not include a prohibition on causing offence,’ he says, although this does sound rather like a one-way street. If you’re knowingly causing offence to someone, you’re not tolerating them, are you? And what about those who are gratuitously offensive for the sake of being offensive? Warburton goes on to say that ‘the intolerance shown by some religious believers is deeply offensive to many non-religious people’, but ‘this is not a reason for threatening violence against the intolerant. It is an opportunity to meet speech with counter-speech’.
The same applies, he argues, to ‘hate speech’ which ‘degrades people on the basis of their race, religion or sexual orientation’. In the USA it is protected, he says, under the First Amendment, but philosopher Jennifer Hornsby says that extreme liberalism ends up ‘protecting the freedom of those who are least in need of protection’. On the other hand Kenan Malik says ‘Free speech for everyone but bigots is no free speech at all’, but in my own opinion this is simplistic. You might just as well argue (like an anarchist) that a society with laws or rules of any sort is not a free society.... There are broader issues involved, and I think these other questions could be looked at a little more closely.
In Chapter 4 Warburton considers ‘Censoring pornography’.
He says pornography presents a challenge for anyone who believes in freedom of expression. Should it be tolerated, ‘or are there more important issues at stake here than freedom?’ he asks. The invention of photography and now the internet have greatly increased the availability of pornography in the modern era. It now comes in vivid, visual form, which raises a side-issue we need to dispose of first. Visual pornography is not ‘speech’, it is pictures, so in what sense should it or should it not have ‘free speech’ protection? This is really a pedantic issue. As Warburton noted in Chapter 1, even if a form of non-verbal expression or communication isn’t literally a question of free speech, it can still be a question of free expression where the same issues of regulation, censorship, giving or not giving offence etc. can apply.
It is important to have a definition of pornography. Warburton defines it as ‘a kind of image making designed to arouse the viewer sexually by representing explicit sexual action of some kind, though not all pornography is visual’. There can be audio pornography, and written pornography. There is a conventional distinction between ‘hardcore’ pornography that is particularly explicit and ‘softcore’ pornography which sets limits on what it depicts.
Feminists Catherine MacKinnon and Andrea Dworkin defined pornography as ‘the graphic sexually explicit subordination of women through pictures and/or words’, portraying women (principally) as ‘sexual objects’ or ‘commodities’. They argued that pornography should be actionable (in the USA) as a violation of civil rights. Feminists also argue that portraying degrading images of women is disadvantageous to women’s role in society generally, as well as promoting offensive and misleading messages about their sexual availability. Feminists are firmly against the idea that pornography should have ‘free speech’ or ‘free expression’ protection in law, whether it brings pleasure or entertainment to its users or not.
Conversely there are some feminists such as Wendy McElroy who are pro-pornography. She argues that pornography can provide wider information about sexual possibilities and choices, so it can be of ‘cognitive importance’. I could be wrong, but I believe the pro-pornography feminists are in a minority.
A common criticism of pornography is the potential harm it does to those who participate in its making – injury, rape or exposure to sexually transmitted diseases. Psychological harm is also mentioned. It is alleged that the making of hardcore pornography often involves coercion; so – if this is true – the existing laws against rape, coercion etc. would apply.
Another criticism of pornography is that watching it may cause people to commit sex-crimes they would not otherwise have committed. This is undoubtedly true in some cases, but difficult to prove in all cases. Whilst it is true that some sex offenders watch pornography, there are others who do not, and in the case of those who do, how can it be proved that watching the pornography was the principal (or the only) cause of their behaviour? Warburton says that many regular pornography users ‘never move beyond pornography’, nor do they behave immorally in real life (I suppose it’s better that a voyeur stays at home watching porn rather than going out peeping in real people’s windows).
But the whole question is very controversial. Some might argue that although the issue is inconclusive, it would still be prudent to ban hardcore pornography anyway, even though sexual crimes would in all likelihood continue to take place. Warburton says (p68) ‘it seems prudent to suggest some restrictions on violence in pornography’.
Liberals insist that other than excluding the involvement of children and the use of coercion in its production, adults should be free to use or to make pornography up to but excluding the point where someone is harmed. Censorship is seen as a potential ‘slippery slope to far broader censorship’. Legal moralists such as Lord Devlin ‘believe that the law should enshrine societal values to the extent that anything which is morally corrupting or might be seen to undermine the traditional family and family values should be forbidden by law’. It is interesting to note a convergence of view between the legal moralists and the feminists in wanting to place restrictions on pornography.
Warburton concludes this chapter with a longish discussion of art and pornography (pp73-80). Throughout its history art has often featured eroticism, but controversy arises when this borders on or is said to border on indecency. A famous example was the unexpurgated version of Lady Chatterley’s Lover by the novelist D.H. Lawrence. It is usually argued by the artistic and literary establishments that the presence of artistic or literary merit in a work should exempt it from being criticized, censored or banned for being ‘pornographic’. It should have full ‘free speech’ or ‘free expression’ protection.
It is argued on these grounds that ‘all artistic censorship is wrong’. But Warburton does not agree, citing the example of a particularly revealing photograph of a four year old girl exhibited at an art exhibition in the USA some years back. Quite apart from the fact that ‘she was not of an age where she could possibly have given informed consent to be photographed’, Warburton’s view is that ‘the risk of stimulating the perverse imaginations of paedophiles is too high a price to pay for artistic freedom’. He questions the assumption ‘that one area of expression [the artistic] should be protected above others’. He does not accept the ‘special case’ argument as deployed by the artistic and literary establishments ‘as if artistic concerns always trump moral ones’.
Chapter 5 is ‘Free speech in the age of the Internet’.
The question which Warburton starts with is, has the Internet changed everything? American judge and legal theorist Richard Posner has identified four features of Internet communication which appear to magnify the dangers of irresponsible speech, with consequences for how we think about free expression:-
1. Anonymity - The Internet permits users and creators of communications to remain hidden. It is easier to create and propagate dangerous material such as child pornography and hate speech.
2. Lack of quality control - Anyone can post anything on the Internet, very different from conventional publishing where inaccurate or misleading information is filtered out by editors, readers and/or lawyers.
3. Huge potential audience - The Internet provides access to millions of potential readers or viewers, magnifying any harm caused.
4. Anti-social people find their ‘soul mates’ - People with perverse or dangerous views or interests can find each other very easily on the Internet.
Posner notes that these features of the Internet may turn out to be transitory and Warburton agrees, noting that some websites set very high standards. But he acknowledges that many of the problems posed by the Internet seem to be here to stay.
Probably one of the most interesting from a philosophical point of view concerns copyright. The Internet now makes it extremely easy to plagiarize and reproduce the work of others under one’s own name, and the legal challenge is the practical one of how to detect and then rectify breaches of copyright. The question of principle, though, is rather different – what exactly is wrong with copying or plagiarizing someone else’s work or ideas? Warburton gives some brief discussion of this question.
In the Conclusion to his book, Warburton reiterates the value and importance of free speech. But he recognizes that in special circumstances, other considerations can override it for example child protection and, as he says, ‘some kinds of extreme pornography should not be allowed to shelter under the umbrella of free speech’.
Postscript – Warburton’s book came out in 2009 which I believe was before the Julian Assange affair hit the headlines. A question worth discussing is whether Assange really is a defender of free speech, as is sometimes claimed, or not. Insofar as he infringes the right of politicians, officials etc. to confidential communication with each other, he implicitly denies their freedom to do that. So who believes in free speech? Not Mr. Assange!