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University of Wisconsin–Madison

Re-thinking why we believe in free expression

For the past two weeks or more, a fierce debate has raged about the publishing of the offensive video and French magazine cartoons about Mohammed. Predictably, the debate has been structured around two positions – a strong call for free expression (offensive or not) versus calls for protection against offensive material.

Free expression advocates warn about a “hecklers veto” where people can shout down forms of expression they don’t like. This is essentially a slippery slope argument which worries that restraint on expression in one area of society can lead to restraint in other areas of society. When it comes to free speech, it appears to be ‘all or nothing.’

Advocates of restraint tend to focus on the feelings of offense caused by the expression in question, and to call for laws (or government action) to stop such offense.

I don’t want to focus on the video and enter into that debate, at least not in this post. Rather, I want to play a more philosophical role: of asking whether our understanding of free speech needs better arguments, and whether we need to reformulate our principles.

Debates on free expression and offended parties often miss the key question: What serious harm has the expression actually caused or is likely to cause, and is it sufficient to warrant ethical and legal condemnation?

In any tolerably liberal society, restraint on expression cannot be based on causing offense, or of causing hurt feelings, even when deeply held beliefs are insulted. Causing offense is too subjective to act as a reliable criterion for restraining expression. Some people can be offended by just about anything, from what people wear to gays kissing each other on their TV screens.

What does matter is harm, not offense. The real ethical question is whether publications or free expression cause unjustifiable harm to individuals, groups, and vulnerable minorities. For example, publications against religions, lifestyles, sexual practice, and minorities not only ‘offend.’ They may create a harmful, poisonous environment in which these groups must live.

For example, consider a newspaper in a conservative town. It launches a campaign against gays, publishing photos of gays and accusing them of being a threat to children. The paper doesn’t just express its views, freely. It doesn’t just ‘cause offense’ to gays. It does much more than that. The publication causes real harm to the gay population, prompting them to feel under attack, and perhaps to not socialize as freely as they did before. Such coverage is ethically wrong because of the harm caused, not because it offends some people.

The standard liberal position on free speech, inherited from J. S. Mill, is that society can legitimately restrain conduct only where such conduct seriously harms or sets back the interests of others. So whydoesn’t this apply to virulent and mean-spirited campaigns and similar publications?  I am not advocating hate laws, for example. I just want to k now why Mill’s argument for preventing harm does notapply in some cases of speech and publication?

The response to my query cannot be: In free speech, it must be ‘all of nothing.’ Why all or nothing? This is not even a true statement about America, where there are restrictions on certain forms of speech.   Why not also restrict publications that cause harm to the interests of people by creating, or contributing to, a poisonous social climate. The main issue is not that citizens have to develop thick skins against insults. That is true, but it misses the main point: the impact and harm of the targeted, vulnerable group.

Where does this leave us?

I am not calling for speech laws. I am saying we need to honestly and deeply review the reasons for our beliefs on these issues. Our established views may need review and reformulation.

We — citizens and the news media — need better arguments for what types of speech should or should not be restrained. If I am right, journalists need to cover these free speech issues with greater subtly for the principles and complexities involved.

We need to rethink our principles of free expression in a global, pluralistic world.

 

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