Utilitas Forum on Free Speech

[Editors’ note: This post is an abbreviated version of Piers Norris Turner’s introduction to the upcoming Utilitas symposium “Mill on Free Speech.” For this PEA Soup discussion, Cambridge Core has made all the symposium contributions available for free here. 

• Piers Norris Turner, “Updating Mill on Free Speech”
• Melina Constantine Bell, “John Stuart Mill’s Harm Principle and Free Speech: Expanding the Notion of Harm”
• Rafael Cejudo, “J. S. Mill on Artistic Freedom and Censorship”
• Christopher Macleod, “Truth, Discussion, and Free Speech in On Liberty II”
• Dale E. Miller, “The Place of “The Liberty of Thought and Discussion” in On Liberty”

All the contributors have agreed to participate in the online discussion of the symposium.]

Introduction: Updating Mill on Free Speech
Piers Norris Turner, Ohio State University

J.S. Mill’s defense of freedom of discussion in chapter 2 of On Liberty (1859) is sometimes presented in a one-sided way. Famously, Mill makes the case for absolute “free discussion” on the grounds that critical challenge is vital to intellectual and social development, while restricting discussion is a dangerous form of social control. But more needs to be said about the limits of his argument in that chapter. Mill does not mean to protect all speech, or even all expression of opinion. Where does he draw the line?

The essays in this Utilitas symposium refocus attention on Mill’s arguments, showing his sensitivity to the complications that define many free speech cases. For instance, Melina Constantine Bell argues that Mill should be open to the regulation of “bigoted insults” that cause significant harm and don’t contribute to discussion. Dale E. Miller rejects a tendency to read Mill’s argument as depending on the balance of good and harm in restricting expression of opinion. He cautions that, on Mill’s view, most expression of opinion remains strictly “self-regarding” or harmless and so falls outside of society’s jurisdiction. Christopher Macleod focuses on Mill’s notion of “discussion,” arguing that chapter 2 is concerned only with epistemic practice concerning truth-apt propositions, and does not weigh epistemic good or harm against other considerations.  Rafael Cejudo then addresses the way artistic expression is, or is not, protected by Mill’s defense of free discussion in light of its epistemic benefits and potential harm. I encourage readers to engage these valuable contributions to our understanding of Mill’s arguments in chapter 2 and then join our discussion here at PEA Soup.

I won’t here rehearse the basics of Mill’s argument (which are summarized in my full introduction). Instead, I want to raise a few points that complicate Mill’s place in discussions about freedom of expression—showing his sensitivity to the difficulties that define many challenging free speech cases. Let’s begin with some of the evidence:

• In “Mr. O’Connell’s Bill for the Liberty of the Press” (1834), Mill defends free discussion but is also clear about limits: “[I]t shall be lawful to controvert any political doctrine, or attack any law or institution, without exception; in any manner and in any terms not constituting a direct instigation to an act of treason, or to some other specific act to which penalties are attached by the law.”
• In that article Mill also argues that private libel ought to be restricted even when the allegation is true. It is an invasion of privacy; only when conduct bears upon the “public character of a person” should it be open to public disapprobation or censure.
• In On Liberty, Mill introduces the corn dealer case as an example of incitement or “instigation to some mischievous act” that may be restricted.
• Finally, in “Thornton on Labour and its Claims” (1869), Mill considers the case of union members expressing their frustration at workers who benefit from the union’s efforts but are unwilling to make sacrifices themselves. He says that while it is justifiable for those workers “to have brought before them, in an impressive manner, what their fellow-workmen think of their conduct” there should be no “threat of infringement of any of the rights which law guarantees to all – security of person and property against violation, and of reputation against calumny.” A difficult case, he writes, is “picketing”:

Hooting, and offensive language, are points on which a question may be raised; but these should be dealt with according to the general law of the country. No good reason can be given for subjecting them to special restriction on account of the occasion which gives rise to them, or to any legal restraint at all beyond which public decency, or the safety of the public peace, may prescribe as a matter of police regulation.

How should we make sense of these cases of incitement, private libel, threat to equal rights, public safety, and public decency? To understand how to update Mill on free speech, our challenge is to see how he can both endorse restrictions on a range of expression of opinion and yet argue for absolute freedom of discussion.

The first part of this challenge is, I think, answered by an underappreciated comment Mill makes about Montesquieu in his earliest writing on the topic, “Law of Libel and Liberty of the Press” (1825). He writes that Montesquieu saw correctly that “the only case in which the expression of opinions and sentiments could be a fit object of punishment” is when – and here he begins quoting Montesquieu – “the words that are joined to an act take on the nature of that action.” Montesquieu gives this example: “a man who goes into the public square to exhort the subjects to revolt becomes guilty of high treason, because the speech is joined to the act and participates in it [. . .] Speech becomes criminal only when it prepares, when it accompanies, or when it follows a criminal act.”

Mill emphasizes that Montesquieu’s argument could extend beyond treason, and we have already seen him extend it. But then: are there other expressions of opinion that, in certain circumstances, become joined to criminal or harmful acts (say, threatening equal rights or even public decency) such that we may restrict the expression itself? If so, Mill should be open to considering such restrictions, at least in principle. (Again, see Bell’s article for an argument to this effect.)

To address the second part of the challenge – how can Mill then defend absolute freedom of discussion? – the key thought is to notice how consistently Mill uses the term “discussion” in defining the topic of chapter 2, and then ask what distinguishes discussion from other expressions of opinion. My own preferred version of this approach emphasizes that discussion is a subset of expression of opinion governed by basic norms of fairness, regard for truth, and sincerity, and that it is this practice that Mill means to defend absolutely and all things considered. (Macleod and Miller both address this issue.)

Interestingly, Mill tells us that even “discussion” may be restricted in “moments of panic,” and in his Considerations on Representative Government asserts that a “temporary dictatorship” could be justified in times of “extreme exigency.” The broader point is that Mill’s support for free discussion is contingent on circumstances—as befits a utilitarian—and he would not simply disregard new evidence affecting the realization of his liberal aims of learning from each other and providing a check on power. In non-crisis circumstances, Mill would likely conclude that any restriction on discussion ultimately makes things worse—I do not mean to lose sight of that core part of his view. But if freedom of discussion turned out to hinder our learning from each other under certain, delineable circumstances (perhaps by diminishing certain voices), that would be an important finding for him. Already in On Liberty, he notes the unfair ability of dominant groups to “stigmatize those who hold the contrary opinion as bad and immoral.” And even as he defends freedom of discussion against formal restriction, he ends his chapter by characterizing a “real morality of public discussion” – of sincere and charitable engagement – to be enforced by the opinion of interlocutors themselves.

Mill’s defense of freedom of speech in chapter 2 begins to look rather like a defense of not restricting viewpoints in frank and fair-minded public discussion. That is a more limited, though still very important, claim. But it leaves open key questions, such as whether Mill intends to protect manipulative, demeaning, or coercive expression of opinion tied to significant harms. What, then, is his settled overall view of what speech should or should not be protected?

Mill writes: “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” We have been asking why he believes this, and what is packed into the notion of “discussion, as a matter of ethical conviction” that justifies its being unrestricted. In doing so, we have also uncovered some clues about when Mill is willing to consider restrictions on speech. Perhaps the main lesson of this symposium is that we must look beyond On Liberty for Mill’s complete view of freedom of speech. What the “fullest and freest comparison of opposite opinions” requires in our social and political circumstances is something Mill himself would have us continue to reflect on.

 

*for citations in this post, please see the link to my full introduction in Utilitas