Free Speech. Jonathan Seglow

question of whether and why pornography, as a mode of speech, should be regulated. After briefly examining the view that pornography might possess some social value, we consider different types of harms that pornography is often accused of inflicting on women. These include harms to women involved in the pornography industry; the sexual violence or discrimination encouraged by the consumption of pornographic materials; and the view that pornography harms women in society more generally, by inherently subordinating or silencing them. We show why, though pornography might in principle advance the values of autonomy and democracy, it is more often likely to undermine them.

      Chapter 6 tackles three pressing issues at the forefront of contemporary public debate on contemporary free speech. The first concerns the policy of no-platforming, adopted by university students in the United States, the United Kingdom and elsewhere. This is a policy of denying controversial speakers external to the university a platform to speak from in that university – which makes it another case of policing free speech norms. We consider the complex relationship between academic debate and free speech, and examine whether there is a case for no-platforming on the basis of the values that universities exist to promote. The other two issues examined in the chapter are, both, related to free speech in online environments. One is fake news: ‘the deliberate presentation of (typically) false or misleading claims as news, where the claims are misleading by design’ (Gelfert 2018, pp. 85–6). The other is online public shaming: the use of social sanctions through speech in order to criticise those who have allegedly done or said something wrong (another example of speech as conduct). We examine recent work in political theory that has begun to address fake news and online public shaming and investigate ways in which the three arguments for free speech can help us to make sense of them.

      We conclude with some brief reflections on free speech and liberalism’s self-understanding.

In a short book like this one we have had to leave out much material that is interesting and relevant to the debate on free speech. Rather than examine in detail every new development that affects the frontiers of free speech – children’s unfiltered online access, cyberbullying, the heated debate between some feminists and the trans community, the replacement of mainstream media by personalised social media in the delivery of news and current affairs, for instance – we have opted for explaining long-standing debates about the nature, value and limits of speech (though in Chapter 6 and elsewhere we say a little about some new controversies, too). In this way we can at least understand how established theories of free speech might address such developments. We hope to show why and how free speech matters – but also why other values sometimes matter more.

      We are grateful to George Owers and three anonymous reviewers for their constructive and insightful feedback on earlier drafts of this book. We would also like to thank Julia Davies and Manuela Tecusan for all their support and advice throughout the production process.

Notes

      1  1 Visit https://twitter.com/jk_rowling/status/1269382518362509313?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1269382518362509313%7Ctwgr%5Eshare_3&ref_url=https%3A%2F%2Fwww.nbcnews.com%2Ffeature%2Fnbc-out%2Fj-k-rowling-accused-transphobia-after-mocking-people-who-menstruate-n1227071.

      2  2 Visit https://www.abc.net.au/news/2019-12-20/jk-rowling-backs-sacked-worker-in-transgender-speech-case/11817234.

      3  3 Visit https://www.politico.com/news/2020/09/17/trump-black-lives-matter-1619-project-417162.

1 Theories of Free Speech

      Introduction

      There are plenty of potential justifications for free speech – explanations of why it is so valuable and important; and they tend to have a liberal flavour. One might argue that societies that respect their citizens’ free speech, especially on political and related matters, are more stable, more peaceful and more tolerant than societies that do not; or, relatedly, that free speech functions as a kind of safety valve, enabling citizens to express grievances without resorting to disorder or violence. Those grievances might take the form of low-value hate speech. Another justification is that many people value diversity and pluralism in political, artistic, religious, cultural and academic matters and free speech will enable expression of these values much better than would the state enforcement of an orthodoxy.

      Freedom of speech can also be defended along the lines of a characteristically liberal scepticism towards government power. Given that legislators and public officials are prone to limiting individuals’ liberties for arbitrary or unjustifiable reasons, it is sensible to require them by law to protect free speech. As Frederick Schauer writes,

Freedom of speech is based in large part on a distrust of the ability of government to make the necessary distinctions [between speech that may be regulated], a distrust of governmental determinations of truth and falsity, an appreciation of the fallibility of political leaders, and a somewhat deeper distrust of government power in a more general sense. (Schauer 1982, p. 86)

      It is no accident that all these are, broadly speaking, liberal arguments. Free speech is a liberal principle, indeed one of the liberal principles. This does not mean that other political perspectives cannot support free speech; socialist and conservative parties in democratic states generally and speech that may not support it too, for example. Nor does it mean that other philosophical and political views have nothing to offer the debate over free speech. In Chapter 5, when we look at pornography, for example, we will consider feminist, conservative, communitarian and virtue ethics arguments against pornography that stand opposed to liberal permissiveness. There are also recent efforts to outline a Marxist defence of free speech (Heinze 2018a, 2018b). But to claim that free speech is a liberal value is simply to draw attention to individual liberty, which is conceptually at its heart. This is true even if, as we will explore below, free speech is a matter of dialogue or democracy: it is speech between persons who are individually free to express and communicate their views. For this reason, apart from the exceptions noted, we shall not say very much about non-liberal approaches to free speech in this book.

      We will focus instead on the three most prominent defences of free speech in the extensive literature on the topic. These theories are based on the values of truth, autonomy and democracy; and, as we will see, they are really families of views, since there are divisions within them. These three theories will help us to organise the discussion in the entire book, since they often have divergent – though sometimes overlapping – implications for deciding when speech may or should be limited.

In presenting these theories, we need to bear in mind two sets of distinctions. One is between claiming that free speech is valuable on the grounds that it is an essential means to achieve some further good, such as the good of diversity, or to avoid some harm, for example the harm of violent disorder, and claiming that free speech is inherently valuable independently of its consequences, as part of some larger moral or political ideal, for example the ideal that the value of personal autonomy should include the freedom to express oneself. The former type of claim is called consequentialist; the latter, deontological. The distinction between consequentialism and deontology is much discussed in moral philosophy and political theory, and free speech is almost certainly valuable for both sets of reasons (Greenawalt 1989). The other distinction we need to make is between our various interests: our interests qua speakers of