Is there a Right to Free Speech: A measurement of Harm.
Speech is a means to communication, a free-flowing highway of information and gossip, but like a roadblock for traffic, interference from the state could be seen as inconvenient, or an unjustifiable limitation. Free speech, as defined by the Universal Declaration of Human Rights, is “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” (Warbuton,2). The right to free speech protects a person’s ability to express their opinions and views, no matter how controversial or fallible they are, without unjustified interference from the state. Although the right to free speech is rudimentary to basic human rights, there are factors that would justify government interference, censorship and regulation. These justifications include Mill’s harm principle, legal moralism, and the harm test.
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John Stuart Mill, describes the Harm Principle as, “The justification for interference with someone’s freedom to live their life as they choose is if they risk harming other people.” (Warbuton,23), indicating that your right to freedom of expression will be upheld until you clearly incite violence and or physical harm onto another. Although the harm principle is a pillar aspect to justifying the interference from the state, John Stuart Mill acknowledged the vulnerability of speech. He attributed speech as a way to obtain individual liberty while maintaining the majority interest, he quotes, “By saying what we think and by attending to the opinions and reactions of others, we as a society, are more likely to form better-justified and hence true beliefs.” (McGowan,771). It is evident that free speech is necessary for personal and communal growth, and this idea is expressed by two other theorists, Alexander Meiklejohn, and Thomas Scanlon. Meiklejohn takes the protection of speech from individual liberty to a vital aspect for democracy in his quote “A society will only be genuinely democratic if we are free to criticize the government, tell our representatives what we want them to do and freely discuss matters of public concern” (McGowan, 770). John S. Mill argues the importance of individual growth, while Alexander Meiklejohn advocates for the projected better function of a democratic society with the protection of free speech. In compression, Thomas Scanlon brings the two theories into question by advocating for individual liberty and autonomy, and claims that “If the state limits expression, then we are prevented from even considering some possibilities when deciding what to do and think.” (McGowan, 770). He points out the dangers of allowing state regulation and how it could impair our natural ability to obtain individual liberty. While it is evident that state-imposed limitation on one’s freedom of expression is parted on benefits over costs, there are some forms of expression that are unjustifiably harmful to the public health. With this in mind, all and any state intervention must be justified through the harm test.
The harm test measures and assesses the amount and force of regulation that the state can impose on ones right to expression, through three conditions: efficacy, minimal impairment, and proportionality, (Sumner, 150). To justify paternalism by the state, the act of interference must have expected success with no less intrusive policy applicable where the benefits outweigh the costs (Sumner, 150). The harm test ensures that one’s right to free speech is maintained to the highest level when state regulation is deemed necessary. The way of which regulation can be deemed necessary is through the theory of law known as legal moralism. Legal moralism is the view that the law can legitimately be used to prohibit behaviors that conflict with society’s collective moral judgments even when those behaviors do not result in physical or psychological harm to others (Himma). An incident explored in the acclaimed article by The Atlantic, The Coddling of the American Mind, addresses the importance of these three theories and the connection to legal moralism. Trigger warnings have been utilized on campus as a form of protection against potentially harmful content. These warnings are intended to provide those who have trauma, to be prepared for conflict or harm. When applying the harm principle, an unpopular or offensive message has little to do with physical harm but rather psychological discomfort. In this regard, the harm principle would be deemed irrelevant, and the pathway that would need to be taken to get state interference would be through legal moralism. Common interest and morality are what deems one’s actions to be immoral or intensely unpopular, and when conflicting with the majority morality, regulation has the possibility to mimic the no platform argument. When putting a filter on the opinions expressed by those who conflict with others, there is a risk for developing a coping mechanism of “vindictive protectiveness” (Lukainoff). This can ultimately end with inequality among those who’s fundamental rights to expression are being infringed.
This is where corporations and staff struggle to find a policy that reduces the amount of harm caused by the sending of a message from a speaker to an audience that is uninterested and reciprocal. When a speaker’s interest fails to fall in unison with an audience, miscommunication can cause more harm than the actual message being sent. A speaker expresses their opinions and ideas to engage in communication and to be recognized as an informed citizen on public concern. An audience member however, acknowledges the benefits of being the recipient of other speeches, and can attend social gathers or seek out certain speakers to become better informed, and facilitated in the pursuit of one’s ideas and values. When a conflict of interest arises, it can create and endorse “a constant state of outrage, even toward well-meaning speakers trying to engage in genuine discussion” (Hadit). Limiting the opportunity for a speaker to send certain messages can cause more issues then projected benefits. Harm, perhaps rather than by the messages themselves, is being caused by the over censorship of the offensive or unpopular messages. The harm test, in contrast to Mills harm principle, addresses the danger of inequality that comes with this regulation. He comments that “any restrictive policy passes a harm test: the government must be able to show that hate speech poses a significant risk of harm to minorities that are its targets” (Sumner, 149). When applying this quote by Mill to trigger warnings being used on campus the state has little right to deny access to people’s rights to expression due to controversy and offence, Sumner concludes that “forms of expression which pose no risk to others then the freedom to engage in them must be inviolable” (149). Offensive content or unpopular opinions can be destructive, annoying and indecent but are not harmful. Offensive speech is vastly different than hate speech. If public health and liberty are at risk due to immoral actions opinions and views, then State regulation would be deemed appropriate. But since all citizens have the fundamental right to free speech it would be immoral in itself to assume all offensive and unpopular opinions are fallible. For the state to impose on one’s freedom of expression to meet the demand for better public health and individual liberty it would need to pass the harm test.
Hate speech, in contrast to offensive or unpopular speech, is a given but complex example of speech that has a high possibility of inciting violence and/or physical harm onto another but is incredibly difficult to regulate. Hate speech, “is a form of expression or communication, not itself violent, which insults or defames a social group” (Sumner,142). For hate speech to be harmful, the message sent to an individual or group must be targeting uncontrollable aspects of their identity, things such as race, ethnicity, sexuality, disability, and so on. Hate speech, although a form of an expression, is not protected. An expression is the attempt to convey a meaning through the sending of a message in any form and is protected by the Charter of rights and freedoms (Sumner, 147). Fighting words are also not protected under section 2(b) of the Charter of Freedoms and Rights. Fighting words are “those in the very utterance inflict injury or tend to incite an immediate breach of peace” (Sumner, 147). Any state-imposed legislation that is aimed to eliminate or punish hate speech would be limiting some forms of expression and therefore infringing on section 2(b) but is then saved under section One. Proving that although one has the right to free speech, it is not unconditional nor is it free from criminalization.
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To further show how the harm principle, the harm test, and legal moralism combined can justify state interference, the censorship and regulation of pornographic content will be brought into question. Pornographic content such as videos, pictures and audio are known to be of conflict between public morality and individual interest. Porn, in its intended state would be a question of morality before it’s a question of legality. If both parties in pornographic content are consensual then physical harm is deemed irrelevant and under the harm principle pornography cannot be censored. But the aspect of consent is often based on assumption, this is pointed out by Lori Gruen when she wrote, “Women’s protests or refusals are not recognized as legitimate” (165), she explains that even in the act of a woman saying “no” it’s often portrayed as “sexual-language” (165) and not a denial or retraction of consent to the participation in sexually explicit activities. Unless consent is put as a disclaimer before the sexual acts are shown on screen, there is no way to truly know which parties have or haven’t agreed to all the acts that will be filmed and produced. But consent is unfortunately a question of morals, not harm, “moralism cannot override the value of liberty” (Gruen,159). This is where the theory of legal moralism falls short, the sheer aspect of indecency could not justify the interference from the state that would allow censorship and regulation or pornography. And, Mills harm principle would only be applicable in the case of nonconsensual physical harm caused to women through the portrayal of male superiority in physical dominance.
Neither filter of harm, the harm principle by John Stuart Mill, legal moralims or the harm test, is applicable or fully sound in every scenario where personal liberty and democratic values are at stake. The harm principle allows you to fully exercise your right to communicate any view or idea you have until you risk harming another, but like a road, there are two sides to a functioning system, in alignment with legality there is morality. Legal moralism advocates for the better interest of society, protecting individuals from “moral disease” (Gruen, 158), but morals aren’t always sound in the eyes of the law. A state can only justifiably intrude on one’s rights to free speech if they risk harm to the values of a democratic society or those able to receive your harmful message. This may be an inconvenience in the spreading of a speaker’s ideas, but it is justifiable in the name of liberty, autonomy and equality.
- Gruen, Lori. ‘Pornography and Censorship’, in R.G. Frey and Christopher Heath Wellman (eds.). A Companion to Applied Ethics. Oxford: Blackwell, 2005, 154-166.
- Lukianoff, Greg, and Jonathan Haidt. ‘The Coddling of the American Mind’, The Atlantic, September 2015, https://www.theatlantic.com/magazine/archive/2015/09/the-coddlingof-the-american-mind/399356/
- McGowan, Mary Kate. ‘The Ethics of Free Speech’, in John Skorupski (ed.). The Routledge Companion to Ethics. London: Routledge, 2010, 769-780.
- Sumner, L.W. ‘Hate Crimes, Literature, and Speech’, in R.G. Frey and Christopher Heath Wellman (eds.). A Companion to Applied Ethics. Oxford: Blackwell, 2005. [142-153]
- Warburton, Nigel, Free Speech: A Very Short Introduction, Oxford: Oxford University Press, 2009
- Himma, Kenneth Einar. “Philosophy of Law.” Internet Encyclopedia of Philosophy, Internet Encyclopedia of Philosophy, 2018, www.iep.utm.edu/law-phil/.
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