Are there proper limits to free speech? If so, what should they be? In Western history, the first, and perhaps still the most popular, attempt to establish liberal limits to free speech was made by John Stuart Mill in his book, On Liberty, which was published in 1859.
Mill brings up the British corn merchants in making his case for liberal limits to free speech. In the mid-1800s, the corn merchants were hated and feared by the poor. Radicals stirred up the poor by accusing the merchants of hording grain in order to drive the price of it up and force the masses to choose between paying inflated prices and starvation. Conservatives feared the radicals would succeed in politically mobilizing the poor, and wanted to protect the social order by silencing the radicals, using the powers of the government to do so.
In turn, Mill argued that the government did not have unlimited rights to silence people, but could do so only if they were in violation of “one very simple principle,” which is now usually called the harm principle, and which states, “…the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.”
But what did Mill mean by “harm”? That question is the subject of debate, but I think Mill intended to narrowly limit what constitutes harm in these circumstances to actions that harm or violate another person’s rights, or threaten to do so.
For instance, a corn merchant could be harmed by someone publishing information that resulted in the boycott of his business with a resulting loss of profits. But this sort of harm does not appear to be what Mill had in mind because it does not violate the rights of the corn merchant. In other words, the merchant has no right to force people to patronize his business in order to guarantee his profits.
On the other hand, a merchant could be harmed by someone denouncing him to an angry mob gathered in front of his house for hording grain in order to drive the price up. If someone did that, it could incite the mob to violate the merchant’s property rights (e.g. by burning his house down), or even to violate his right to life. Consequently, the speech of the person denouncing the merchant could in this case be legitimately suppressed.
As I said, what Mill meant by “harm” is debatable, but I think it can at least be argued that he wished to narrowly limit what constitutes harm. Whatever the precise meaning of it, Mill’s harm principle became for generations the traditional liberal ideal for imposing limits on speech.
In the 1980s, Mill’s harm principle came under attack from the American philosopher, Joel Feinberg. Feinberg asked, “whether there are any human experiences that are harmless in themselves yet so unpleasant that we can rightly demand legal protection from them even at the cost of other persons’ liberties.” That is, do we have a right to be protected, not merely from harm, but from offense, as well? His answer to the question was to argue that at least some forms of harmless but profoundly offensive conduct can properly be criminalized, and he urged that Mill’s harm principle be replaced with his offense principle.
Feinberg’s offense principle provided the initial philosophical justification for the infamous attacks on free speech by the Regressive Left that are in the news today. The Regressive Left — as distinct from the Progressive Left, which still strongly supports free speech — has now built on Feinberg’s work to go further than him. For instance, Jeremy Waldron, an Oxford professor, suggests these days that speech that merely attacks the dignity of others should be banned. “We have gone from the principle that only speech that incites crime can be banned to the principle that speech that incites gross offence can be banned to the principle that speech that provokes discomfort can be banned.”
What most strikes me about the theorists of the Regressive Left is that they do not seem to notice — or perhaps they notice, but do not fully grasp — that they are putting themselves at grave risk of having the tables turned on them. As Nick Cohen writes:
Few contemporary theorists grasp that people oppose censorship not because they respect the words of the speaker but because they fear the power of the censor. It is astonishing that professed liberals, of all people, could have torn up the old limits, when they couldn’t answer the obvious next question: who decides what is offensive?
If it is the representatives of a democracy, you have the tyranny of the majority to discriminate against “offensive” homosexuals, for instance. If it is a dictatorship, you have the whims of the ruling tyrant or party—which will inevitably find challenges to its rule and ideology offensive. If it is public or private institutions, they will decide that whistleblowers must be fired for damaging the bureaucracy, regardless of whether they told the truth in the public interest. If it is the military, they will suppress pictures of torture for fear of providing aid to the enemy. If it is the intelligence services they will say that leaks about illegal surveillance must be stopped because they might harm national security, just as pornography might harm women. Why should they have to prove it, when liberals have assured them that there is no need to demonstrate actual damage?
Yet, they are not only putting themselves at risk of having the tables turned on them, but everyone else as well. A society that embraces the notion rights can be abridged simply because their exercise causes someone, somewhere profound offense, much less mere discomfort, is a society ripe for dictatorship. Were such a notion to prevail here in America, our notably thin-skinned president would have legal standing to shut down any criticism of himself whatsoever.
I think perhaps the best thing that can be said about Feinberg’s position is that, to see the truth of his notion that offenses can be profound, one only has to recall some instance when one suffered grievous hurt from a mere slight. “Only sticks and stones” can harm us is a lie: The emotional fallout from words alone can at times outlast the pain of a broken arm. That’s to say, his position is well grounded in human psychology. Yet, to recognize that fact is not necessarily to endorse his views that certain behavior should be criminalized simply because it causes profound offense.
Whether we like it or not, all societies require of their citizens some sacrifices in order to preserve the society itself. It seems to me that liberal democracies, especially, require their citizens to accept that they will at times be disgusted, repulsed, shocked, shamed, or embarrassed by the opinions and behaviors of their fellow citizens and yet, they will be unable to suppress those opinions and behaviors, least their society descend into tyranny. For the real choice here is not between being offended and not being offended, but rather between freedom and oppression.