Freedom of Expression
DOI link for Freedom of Expression
Freedom of Expression book
It is true of any liberal theory of freedom of expression that it must account for the immunity from legal restriction of acts of expression which occasion manifest damage to interests of a gravity that would warrant such restriction if the acts were not acts of speech (for example) but acts of a non-expressive character. Mill acknowledges that acts of expression are in this respect a privileged class of acts in a number of passages:21
In this passage Mill acknowledges that expressive acts enjoy a priviledged immunity from liberty-limiting legal restrictions on harmpreventing grounds. He allows to expressive acts a greater freedom from restriction on such grounds than other kinds of act. How might he justify this apparently unreasonable exemption? At the end of chapter two of On Liberty, Mill summarises the major arguments he has adduced in support of ‘absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral and theological’.22 First, he appeals to the fact of human fallibility; second, he appeals to the value of truth; third, he appeals to the value of rationality, asserting that, even if an opinion contains the whole truth, it will be held as a prejudice, without understanding of its grounds in reason, if it is not challenged in open debate; and, fourth, he appeals to the value of vital belief, claiming that without ‘the collision of adverse opinions’, men’s convictions lack the force of heartfelt views. In listing these four arguments in support of freedom of expression, Mill identifies two features that are partly constitutive of autonomous thought-the rationality and the vitality of the beliefs and judgments with which it operates-in the absence of which no man can attain ‘the ideal perfection of human nature’. In making this reference to two constituents of autonomous thought, Mill resolves the paradox of any liberal theory of free expression: if it is legitimate to restrict nonexpressive acts when they threaten damage to human interests, why is it illegitimate to restrict the liberty to perform expressive acts when they threaten similar damage (as surely they often do)? Mill’s repudiation of restrictions on freedom of speech is a consistent application of his ascription to human beings of an overriding interest in becoming and remaining autonomous agents. Restrictions on free expression by their nature obstruct autonomous thought. For, provided
always that the individual can be supposed to have attained ‘the maturity of his faculties’, it cannot coherently be suggested that he might forfeit his sovereignty in weighing rival reasons for action while continuing to regard himself as an autonomous agent. An autonomous agent who cherishes that status is obliged to discount both the harm to himself accruing from the acquisition of false beliefs and the harm done as a result of acquiring a belief (true or false) via an expressive act as being always overridden by the harm done by any restraint of free expression to the interest he shares with others in remaining an autonomous agent. While an autonomous agent may accept, accordingly, that the state has authority to subject him to various kinds of restraint, and while he may rely on the judgment of others about the rectitude of the state’s imposing limits to his liberty, he cannot (without forfeiting his status as an autonomous agent) abrogate the responsibility he has to evaluate critically the state’s actions and the judgments of others. Discharging the responsibility of an autonomous agent, however, presupposes that he possess all the resources of information and conflicting opinion and judgment which are indispensable conditions of rational deliberation and which can only be secured by the protection of liberal freedoms of speech. Such an interpretation of Mill’s reasoning in support of freedom of speech is supported by the character of the famous exception which he allows to the principle of freedom of expression:23
It is surely possible to regard this passage as making an appeal to the improbability of autonomous thought in ‘excited mobs’ rather than an appeal to the harm to the interests of corndealers caused by the utterances made in such circumstances: for, after all, corndealers might be as severely harmed by confiscatory legislation (passed as a result of expressive acts uttered in the reasoned arguments of parliamentary debate) as by any sort of mob violence. Once again, the abridgments which Mill is prepared to make to his liberal principles disclose clearly the rationale for their general adoption-his overriding concern for the creation of a society of autonomous agents. Mill does not deny that
expressive acts may be harmful; he insists that their harmfulness is not in general sufficient to warrant restricting them.