The First Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press." Incorporated by the 14th amendment (and thus applied to the states): "nor shall any State deprive any person of life, liberty, or property, without due process of law."
The First Amendment: "Congress shall make no law...abridging the freedom of speech, or of the press." Incorporated by the 14th amendment (and thus.
Jan 04, 2016
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The First Amendment:The First Amendment:
"Congress shall make no law...abridging the freedom of speech, or of the press."
Incorporated by the 14th amendment (and thus applied to the states): "nor shall any State deprive any person of life, liberty, or property, without due process of law."
"Speech" cannot mean speech.
"Speech" cannot mean speech.
Fraud, conspiracy, false advertising, advertising illegal or regulated items (tobacco, alcohol), negotiating with workers other than union officials (in a union shop), practicing law or medicine without a license (even if only giving advice), libel, slander and defamation of character, blackmail, extortion,
More exceptionsMore exceptions
Fighting words, inciting a riot, revealing secret information to unauthorized persons, revealing trade secrets to competitors, counterfeiting, copyright infringement, perjury...
Is the First Amendment a merely decorative addition?
What is the underlying rationale, value or
theory?
What is the underlying rationale, value or
theory?Neutrality theory: the state must be neutral on all disputed questions.
Self-government (Alexander Meiklejohn): the people are sovereign, so they must have access to all information, and be free to communicate instructions.
Free speech is merely one part of a general freedom to express oneself.
Arguments for Neutrality
Arguments for Neutrality
Epistemological optimism: the “marketplace of ideas”.
J. S. Mill’s fallibility argument.
The state must treat each individual with equal respect as autonomous.
Epistemological Optimism
Epistemological Optimism
In a fair fight, the truth will always (usually?) win out.
Why think so?– “Truth” just means whatever wins out in the end. This has some strange consequences.
– The human mind is so well-attuned to reality (by the “light of reason”) that, when unhindered, it will always succeed.
ObjectionsObjections
It is difficult to maintain the extreme view that truth always wins out.
If it is only a general tendency, with many exceptions, then an absolute right to free speech is not justified. Why not restrict speech in those exceptional cases where discussion does not tend to reach the truth?
Mill’s fallibility argument
Mill’s fallibility argument
(1) No one has rational assurance of the truth of any opinion whatsoever, unless (a) he is infallible, or (b) all persons are absolutely free to contradict it.
(2) Whoever prevents the expression of any opinion asserts by that act that he has rational assurance of the contrary opinion.
Mill’s argument, continued
Mill’s argument, continued
Therefore, whenever someone prevents the expression of any opinion, he thereby asserts that he is infallible in his judgment on that question.
But, (3) no one is infallible on any question.
Therefore, to prevent the expression of any opinion is to commit an intellectual error.
Stephen’s critique of Mill
Stephen’s critique of Mill
Premise (1) is false, since many facts are provable beyond a reasonable doubt, even in the absence of freedom of discussion.
Limiting freedom of discussion weakens our evidence for an opinion only when the evidence for the opinion consists largely of reliance on public opinion.
Stephen’s Critique, continued
Stephen’s Critique, continued
Premise (2) is also false, since one may suppress the discussion of an opinion, not because one believes the opinion to be false, but simply because one thinks that the discussion itself harms the public good.
For example, we might make it illegal to blacken someone’s reputation, even with true allegations.
The Paradox of Tolerance
The Paradox of Tolerance
If Mill is right, the maintenance of a regime of free discussion is all-important.
What happens if certain acts of speech threaten to end that freedom -- e.g., a demagogue advocating a dictatorship?
Apparently, it is wrong to tolerate the intolerant (in certain circumstances).
Mill’s Imminent Danger Exception
Mill’s Imminent Danger Exception
Opinion “that corn dealers are starvers of the poor, or that property is theft” should be permitted in general.
Not to an “excited mob” gathered outside the corn dealer’s house.
Why is imminence so important? Why is OK to create an excited mob, but not to direct its violence?
Treating all with equal respect
Treating all with equal respect
To interfere with the communication of information and ideas is to interfere with the rational autonomy of the individual. (Scanlon)
To suppress certain viewpoints about life, values and meaning, is to treat some citizens as less worthy of respect than others. (Dworkin, John Rawls)
Is neutrality really possible?
Is neutrality really possible?
James Fitzjames Stephen:“The difference between paying a single shilling of public money to a single school in which any opinion is taught of which any single taxpayer disapproves, and the maintenance of the Spanish Inquisition, is merely a question of degree.”
How the state seeks to “control thought”
How the state seeks to “control thought”
By establishing public schools and universities, selecting only certain kinds of people to teach there, and dictating the shape of the curriculum.
By financing public libraries and other depositories of information, and deciding which books and journals to include.
By establishing public holidays, and financing public demonstrations and festivities, on behalf of certain ideas.
By distributing broadcast licenses to organizations deemed to be serving the public interest, and subsidizing PBS.
By building museums, and subsidizing certain works of arts, by particular schools of thought and expression.
Scanlon’s Individual Autonomy Argument
Scanlon’s Individual Autonomy Argument
Scanlon’s position is perhaps not best thought of as a version of neutrality theory.
Scanlon requires that the state not take into account two kinds of harm in regulating speech:– False beliefs, due to persuasion.– Actions taken by others, due to persuasion.
Scanlon’s Justification
Scanlon’s Justification
If the state attempts to protect an individual from false beliefs or foolish actions by protecting them from certain kinds of speech, the state intrudes upon the individual’s right to form his own conclusions.
Free speech is fundamentally a right of the listener, not the speaker.
Scanlon & NeutralityScanlon & Neutrality
Does Scanlon’s position require the state to be viewpoint-neutral?
Perhaps not -- the state can seek to persuade, so long as it permits dissent.
Autonomy for Children?Autonomy for Children?
Can Scanlon’s principle be restricted to adults? Do adults have a natural right to autonomy that children lack?
If not, Scanlon’s principle would seem to require state protection of children from indoctrination by parents, churches & synagogues, schools.
Scanlon’s Nerve Gas Exception
Scanlon’s Nerve Gas Exception
According to Scanlon, it is permissible to ban the publication of a recipe for nerve gas. Why?
Would the same argument apply to publishing detailed instructions for painless suicide? To publishing instructions for hacking the copyright production for CDs, DVDs?
Self-governmentSelf-governmentAlexander Meiklejohn took the New England town meeting as the model for every democracy.
The people are sovereign.– As sovereign, they must have access to all information, ideas, since only they can decide what is relevant.
– They must be free to communicate their instructions to their agents, the state officials.
The Paradox of Self-Government
The Paradox of Self-Government
If the people are absolute sovereign, what is to prevent them from doing anything, including limiting free speech, by majority rule?
If the people are sovereign, what is to prevent them from delegating any power to the state, including the power to regulate speech?
A possible responseA possible response
Meiklejohn’s theory might be salvageable, if we see the people’s sovereignty as derived and limited.
The ultimate sovereign: Nature, and Nature’s God (John Locke)
Nature delegates limited authority to the people.
This delegated authority is inalienable.
Differences between Self-government &
Mill, Scanlon
Differences between Self-government &
Mill, ScanlonWhat are the differences between Meiklejohn’s self-government theory and those of Mill and Scanlon? Who, fundamentally, possesses the right on the two accounts?
What is the scope of the right, on Meiklejohn’s account? What kinds of speech would not be protected?
Free speech as part of a general liberty
Free speech as part of a general liberty
There is nothing special about speech or the press.
Everyone should have maximum freedom of every kind to express themselves, and their own conception of the good.
Problem: one man’s freedom is another man’s restraint. “Freedom for the wolf is slavery for the sheep.”
The Obscenity Exception
The Obscenity Exception
Roth vs. U. S. (1956)Miller vs. U. S. (!973)Paris Adult Theatre
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