It’s the institutions, stupid!

Calvin Chan proposes a new framework for conceptualising free speech.

Outside of philosophy, debates over the limits of free speech tend to proceed in the following way. Supporters claim, naturally enough, that free speech is in some way valuable and that this value is sufficiently weighty to justify certain costs. This leaves them vulnerable to an effective line of attack: all the critic has to do is to produce cases where an instance of free speech does not advance any kind of value or, short of that, cases where it isn’t clear whether the value advanced outweigh the disvalue we incur.

In the academic context, the picture is not so different, though the terms of the argument are more sophisticated. Work in this area has largely developed in the shadow of Mill, and inherits a framework from him with a distinctly consequentialist flavour. Here, as before, free speech is construed as a kind of good, whose value can in principle be balanced by certain costs, and so an assessment of its potential benefits and harms is all that is required for us to decide whether it is worth the trouble. In this respect, our reasoning about whether limits should be placed on speech is but a particular application of the more general “Harm Principle”.

A different approach, which I want to put forward, looks at the issue in another way. One of the problems with the standard approach, as I have described it, is its assumption that support for free speech is tied up with a positive evaluation of such speech, or the effects of having it. Another is that it does not have the theoretical resources to recognise a difference between speech acts and other sorts of acts — ie to explain why free speech is a topic in the first place. When the discussion is framed purely in terms of downstream benefits and harms, we partly miss the point by treating speech as we might any other kind of behaviour that may fall within the orbit of institutional regulation. I provide a sketch of an alternative that avoids both of these two problems.

The first thing to say is that free speech is a political issue, not a moral one. This makes the defence of free speech a much more modest undertaking than it is normally assumed to be. When we argue over whether limits should be placed on speech, it is easy to come away with the impression that we are engaged in a first-order assessment about various bits of speech itself: whether it is good or bad, whether there can be too much of it, and so on. But this is not the only way of looking at the issue, nor is it the best way. Instead, we should notice that whenever we suggest limits should be placed on speech, we are inevitably committed to there being some entity in the role of a censor, whose job it is to enforce such limits. This is a necessary component to any proposal in favour of there being limits to speech. Once this is recognised, however, we immediately see that the issue before us isn’t a straightforwardly moral matter of how individuals should relate to one another, or whether certain forms of communication they exchange constitute wrongs. Rather, there is an unavoidably institutional aspect to the issue, which complicates the picture considerably for those in favour of restricting speech. Therefore, the supporter of free speech does not have to carry out the highly demanding task of proving the goodness or value of free speech in order to make their case. Instead, we need only to challenge the wisdom of granting some institution, be it the state, the clergy, one’s employer, or one’s university, the power to decide what we say.

This might be considered too easy. Why, after all, should something be shielded from institutional supervision if it is not somehow a good thing in the first place, such that it merits this kind of special status? What’s more, if there are other values at stake that come into conflict with the protection of free speech — we have already mentioned equality — then surely we must say something more along the lines as to why free speech is a good thing independently in order to make our case.

To see why this may not be so, it might be helpful to consider the example of an alternative, relevant topic. Much of what is said about the potential harm of speech can equally, if not more forcefully, be said of religion. Just as it isn’t clear whether it is so great to have a lot of Nazi speeches around, or to have pseudo-science promoted under the auspices of free speech, it is often unclear whether it is indeed so great to tolerate beliefs otherwise indefensible for the sake of religious pluralism, or to have the citizenry divided along sectarian lines in ways that some faiths encourage. All the same, most of us believe, atheists and agnostics included, that the solution to these problems does not consist in restricting religious freedom. This is not — at least not necessarily — because we believe that religion is somehow a good thing, which balances out the negatives overall. Rather, it is because we recognise that religion, however much its manifold outputs may conflict with the public interest, is not properly a sphere of human activity that should come under the surveillance of the state. It is perfectly coherent to acknowledge the social costs religion sometimes entail but to resist the application of institutional remedies all the same by insisting that matters of faith belong to the private, not the public sphere.

I mention religious freedom as an example because it brings out the limits of the standard approach and how it offers a defective framework of analysis when we deal with cases of this kind. Its mistake lies in the assumption that every facet of human life, including what a person believes or says, is “fair-game” for institutional regulation. The question over whether such regulations are appropriate is then decided on the basis of the value or disvalue they bring: roughly, if the amount of good we get from introducing restrictions outweigh the amount of good we get from leaving the practice free, then we introduce them. Such a view deprives us of the means to resist an ever-larger presence of rules and requirements imposed from the top down, including rules and requirements over aspects of our lives that we want, upon reflection, to keep beyond the reach of institutional interference.

What we need is an account that allows for the idea that certain aspects of our lives are off limits to institutional oversight. I cannot hope to develop such a view fully here, but the promising framework that I have suggested makes explicit use of the familiar distinction between the public and the private. Such a view has the resources to avoid both of the problems I mentioned in the beginning by providing us with the conceptual tools we need to distinguish between different kinds of human conduct, and a rationale for saying why some of them should be left unsupervised, no matter how unsettling their effects. A full-fledged theory in this area would articulate a principled way of deciding what belongs to the private sphere and what does not, but the absence of such an account at this stage should not preclude us from appealing to this distinction in our reasoning. We should admit that when we make such appeals, we are working with primitive notions that are not as yet precisely defined, but it would be premature to write them off altogether.

Those who favour the standard approach might reply that, so far, all of what I have suggested is compatible with their position. If it is true that, given the risks of abuse and various complications of implementation, it is best for institutions to observe a division between private and public, then we have an outcome-based reason for doing so. One problem with this reply is that it renders the distinction hostage to circumstances in a way that it should not be. Provided with cases where the stakes are high enough, the payoff for all sorts of censorship can, in principle, be justified according to this view. We are merely lucky that the facts normally turn out in such a way that we do not have to go there. Another problem is that it seems to offer the wrong kind of reasons as to why some areas of life should be off limits to institutional meddling. Our concern about censorship has to do with the nature of censorship itself, and the kind of thing that it is. We may additionally be concerned about problems that arise in its execution (eg that it is not realistic to expect responsible use of these measures, that the truth may get suppressed by accident because the authorities get it wrong), but these considerations are quite secondary. The idea that it is not the business of collective bodies to interfere with our beliefs and speech is not primarily a thought that reflects our judgment about the feasibility and trade-offs of these arrangements. It is more that efforts to exert control at all in these areas involves a pernicious form of overreach on the part of such entities.

If current trends are anything to go by, the need to preserve and to reassert some semblance of the boundary between private and public has only intensified. I say this in light of many recent and somewhat reckless attempts to widen, on ostensibly moral grounds, the scope of external scrutiny in our lives. In this regard, calls to curtail speech for such high-minded reasons as to advance the cause of equality, or to designate as “hate speech” unsavoury opinions about vulnerable groups, are offshoots of a larger theme. To cite one recent example, a popular piece in The Conversation has argued for pressure to be put on developers of dating apps to combat “sexual racism” when statistics revealed that many users display, and in some cases proclaim, a preference for white partners. We are told that such apps should be adjusted in order that they “work for everyone, not just those who are ‘attractive’ or white”. That even our sexual relations are now thought to be properly subject to standards of fairness and equal opportunity that govern, say, employment relations is indicative of the extent of the problem.

None of this is an endorsement of any particular bits of speech, or any particular sorts of sexual conduct, any more than a commitment to religious freedom involves an endorsement of any particular religion, or religions in general. To think otherwise is to slip back into the standard approach. We can acknowledge many of the substantive worries that persuade opponents of free speech to favour constraints on speech. In the same way, we may be troubled by the effects of a sexual free market, which rewards and devastates participants on an arbitrary basis. Conceding this much is not, however, to concede that institutional remedies must be introduced. It is possible to admit that these freedoms come at a cost — perhaps even a moral cost — while maintaining that the solution is not to appoint censors with powers to decide what we say, who we sleep with, or how we worship.

Calvin Chan is a DPhil candidate in philosophy at the University of Oxford.

Read more:

Leave a comment in any language


Swipe left to browse all of the highlights.

Free Speech Debate is a research project of the Dahrendorf Programme for the Study of Freedom at St Antony's College in the University of Oxford.

The University of Oxford