freedom of speech philosophy essay

1000-Word Philosophy: An Introductory Anthology

Philosophy, One Thousand Words at a Time

Free Speech

Author: Mark Satta Category:  Social and Political Philosophy , Philosophy of Law , Ethics Word Count: 989

Want to criticize your government? Burn a flag? Wear a t-shirt that says f**k the draft?

Thanks to freedom of speech , in many places you can. [1]

But what exactly is freedom of speech? And what does it permit us to say? This essay will review some influential answers to these questions.

1. Protection from Government, Not Private Actors

Freedom of speech, sometimes called freedom of expression , is a legal right to express many beliefs and ideas without government interference or punishment. This freedom does not typically prevent private entities (e.g., ordinary citizens or private organizations) from limiting speech. [2]

If freedom of speech prevented private entities from limiting speech, freedom of speech could not be applied consistently because the freedom of speech includes the ability not to speak. [3] So, e.g., if a newspaper was forced to publish every piece of writing submitted to it, then that newspaper would lose some ability to not speak. Freedom of speech also includes the right not to listen to or receive other people’s messages. [4]  

The fact that freedom of speech only prevents government interference doesn’t entail that freedom of speech is irrelevant to action by private entities. Some argue that certain private entities ought to voluntarily conform to legal standards for speech protection: e.g., that private universities should conform to the free speech standards legally required by public universities. [5]  Freedom of speech is also sometimes understood more broadly as a social value.

2. Limits on Free Speech

Freedom of speech is not an unlimited right. All governments impose some limits on what kinds of speech they will protect. This is because freedom of speech, like all rights, must be balanced against other rights and values.

Common types of speech not protected by freedom of speech include threats of violence, false advertising, and defamation (i.e., false statements that unjustly harm someone’s reputation). [6]

Many democratic nations do not protect hate speech (i.e., speech intended to threaten, degrade, or incite hatred against a group or group member based on group prejudice). But some other nations, including the United States, treat hate speech as protected speech. Whether hate speech should receive free speech protection has been much debated in recent years. [7]

  But even protected speech can be limited to an extent by the government: e.g., freedom of speech does not permit just anyone to enter a military base or a class at a public university and start talking. This is true because, even though military bases and public universities are government-run, these spaces seek to achieve other important goals that justify limiting free speech.

Freedom of speech gives you much greater latitude in a public park, a public sidewalk, or in your own home. But even in public places like parks and sidewalks, freedom of speech allows for content-neutral restrictions on speech: e.g., a town can have a noise ordinance banning playing loud music in parks near residential neighborhoods after midnight.

But it is important that these restrictions be content- and viewpoint-neutral . [8] Thus, a town could not pass an ordinance limiting speech only about certain topics or from certain perspectives in the park. Such a rule would discriminate based on the content or viewpoint of the speech. An important part of freedom of speech is that the government cannot restrict speech just because it doesn’t like the topics or agree with the speaker. Freedom of speech also doesn’t allow for the suppression of ideas simply because those ideas are unpopular.

3. Expressive Conduct

Freedom of speech protects more than just spoken and written expression. It also protects many other activities through which ideas can be expressed: [9] e.g., in the United States, abstract art, non-lyrical music, and marching in a parade are all activities protected under the freedom of speech. [10]

There are controversies concerning which activities ought to be considered expressive conduct: e.g., there is substantial disagreement about whether political spending by corporations ought to be protected as free speech. [11] There are also disagreements about if and when the creation of products like wedding cakes and photographs ought to be considered protected speech. [12]

4. Prior Restraint versus Subsequent Punishment

Freedom of speech protects people against two different types of government interference: prior restraint and subsequent punishment .

A prior restraint prevents you from speaking: it restrains your speech prior to it being made. At one point, many legal scholars thought that freedom of speech meant only freedom from prior restraint. [13] That is no longer true.

Today, most everyone believes that freedom of speech protects people not only from prior restraint, but also from subsequent punishment (i.e., from being legally sanctioned for protected speech). This makes freedom of speech more robust because it protects people not only from having their protected speech restrained, but also from having their protected speech punished by the government.

5. Why is Free Speech Important?

Philosophers and legal scholars have given many different explanations for why free speech is important. Many scholars think there are multiple good reasons why we protect free speech. [14]

Three common rationales for free speech protections are that they help us (1) discover truth, (2) respect human autonomy, and (3) preserve democracy by allowing criticism of government.

Influential advocates of the idea that free speech helps us discover truth include writer John Milton, philosopher John Stuart Mill, and U.S. Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis. [15]

One common form of the truth discovery argument is that the best way to overcome false speech is with more speech. [16] Given what we know about how viral misinformation works, such a claim can appear implausible. [17] But even if this version of the truth discovery argument is mistaken, there may be weaker forms of a truth-preservation principle that provide us with good reason to safeguard free speech: e.g., someone might argue that the fallibility of political leaders requires them to avoid suppressing others’ ideas.

6. Conclusion

Freedom of speech is valuable. Protecting it first requires understanding it.

[1] See, e.g., Brandenburg v. Ohio , Texas v. Johnson , and Cohen v. California .

[2] See, e.g., U.S. Const. Amend I .

[3] Gaebler 1982 .

[4] Corbin 2009 .

[5] Chemerinsky and Gillman 2017 .

[6] Maras 2015 , Redish and Voils 2017 , and Post 1986 .

[7] See, e.g., Waldron 2012 and Strossen 2018 .

[8] Jacobs 2003 .

[9] Tushnet, Chen, and Blocher 2017 .

[10] See, e.g., Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston .

[11] Hasen 2011 .

[12] Liptak 2017 .

[13] Rabban 1981 , Healy 2013 .

[14] Greenawalt 1989 .

[15] Milton 1644 (reprinted 1918) , Mill 1859 , Abrams v. United States (Holmes, J. dissenting ), Whitney v. California (Brandeis, J. concurring) .

[16] See, e.g., Milton 1644 (reprinted 1918) , Whitney v. California (Brandeis, J. concurring) .

[17] Wu 2018 .

Abrams v. the United States , 250 U.S. 616 (1919).

Brandenburg v. Ohio , 395 U.S. 444 (1969).

Cohen v. California , 403 U.S. 15 (1971).

Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston , 515 U.S. 557 (1995).

Texas v. Johnson , 491 U.S. 397 (1989).

Whitney v. California , 274 U.S. 357 (1927).

Corbin, Caroline Mala. 2009. “The First Amendment right against compelled listening.” Boston University Law Review , 89 (3): 939-1016.

Chemerinsky, Erwin and Howard Gillman. 2017. Free Speech on Campus . Yale University Press.

Gaebler, David. 1982. “First Amendment Protection Against Government Compelled Expression and Association.” Boston College Law Review , 23 (4): 995-1023.

Greenawalt, Kent. 1989. “Free Speech Justifications.” Columbia Law Review 89 (1): 119-155.

Hasen, Richard L. 2011. “Citizens United and the Illusion of Coherence.” Michigan Law Review , 109 (4): 581-623.

Healy, Thomas. 2013. The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America . Metropolitan Books.

Jacobs, Leslie Gielow. 2003. “Clarifying the Content-Based/Content Neutral and Content/Viewpoint Determinations.” McGeorge Law Review , 34 (3): 595-635 .

Liptak, Adam. 2017. “Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers.” New York Times .

Maras, Marie-Helen. 2015. “Unprotected Speech Communicated via Social Media: What Amounts to a True Threat?” Journal of Internet Law , 19 (3): 3-9.

Mill, John Stuart. 1859. On Liberty . John W. Parker & Son.

Milton, John. 1918. Areopagitica . Cambridge University Press.

Post, Robert C. 1986. “The Social Foundations of Defamation Law: Reputation and the Constitution” California Law Review , 74: 691-742.

Rabban, David M. 1981. “The First Amendment in Its Forgotten Years.” Yale Law Journal , 90 (3): 514-595.

Redish, Martin H. and Kyle Voils. 2017. “False Commercial Speech and the First Amendment: Understanding the Implications of the Equivalency Principle.” William & Mary Bill of Rights Journal , 25: 765-799.

Strossen, Nadine. 2018. Hate: Why We Should Resist it With Free Speech, Not Censorship . Oxford University Press.

Tushnet, Mark V., Alan K. Chen, and Joseph Blocher. 2017. Free Speech Beyond Words: The Surprising Reach of the First Amendment . New York University Press.

Waldron, Jeremy. 2012. The Harm in Hate Speech . Harvard University Press.

Wu, Tim. 2018. “Is the First Amendment Obsolete?” Michigan Law Review , 117 (3): 547-581.

For Further Reading

“Freedom of Expression – Speech and Press.” Cornell Law School’s Legal Information Institute.

van Mill, David, “Freedom of Speech”, The Stanford Encyclopedia of Philosophy (Spring 2021 Edition), Edward N. Zalta (ed.)  

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About the Author

Mark Satta is an Assistant Professor of Philosophy at Wayne State University in Detroit, Michigan. He received his PhD in Philosophy from Purdue University and his JD from Harvard Law School. Some of his philosophical research interests include philosophy of law, epistemology, bioethics, and philosophy of language. MarkSatta.com

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Freedom of Speech

This entry explores the topic of free speech. It starts with a general discussion of freedom in relation to speech and then moves on to examine one of the first, and best, defenses of free speech based on the harm principle. This provides a useful starting point for further digressions on the subject. The discussion moves on from the harm principle to assess the argument that speech can be limited because it causes offense rather than direct harm. I then examine arguments that suggest speech can be limited for reasons of democratic equality. I finish with an examination of paternalistic and moralistic reasons against protecting speech, and a reassessment of the harm principle.

1. Introduction: Boundaries of the Debate

2.1 john stuart mill's harm principle, 2.2 mill's harm principle and pornography, 2.3 mill's harm principle and hate speech, 3.1 joel feinberg's offense principle, 3.2 pornography and the offense principle, 3.3 hate speech and the offense principle, 4.1 democratic citizenship and pornography, 4.2 democratic citizenship and hate speech, 4.3 paternalistic justification for limiting speech, 5. back to the harm principle, 6. conclusion, bibliography, other internet resources, related entries.

The topic of free speech is one of the most contentious issues in liberal societies. If the liberty to express oneself is not highly valued, as has often been the case, there is no problem: freedom of expression is simply curtailed in favor of other values. Free speech becomes a volatile issue when it is highly valued because only then do the limitations placed upon it become controversial. The first thing to note in any sensible discussion of freedom of speech is that it will have to be limited. Every society places some limits on the exercise of speech because speech always takes place within a context of competing values. In this sense, Stanley Fish is correct when he says that there is no such thing as free speech. Free speech is simply a useful term to focus our attention on a particular form of human interaction and the phrase is not meant to suggest that speech should never be interfered with. As Fish puts it, “free speech in short, is not an independent value but a political prize” (1994,102). No society has yet existed where speech has not been limited to some extent. As John Stuart Mill argued in On Liberty , a struggle always takes place between the competing demands of liberty and authority, and we cannot have the latter without the former:

All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed—by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. (1978, 5)

The task, therefore, is not to argue for an unlimited domain of free speech; such a concept cannot be defended. Instead, we need to decide how much value we place on speech in relation to the value we place on other important ideals: “speech, in short, is never a value in and of itself but is always produced within the precincts of some assumed conception of the good” (Fish, 1994, 104). In this essay, we will examine some conceptions of the good that are deemed to be acceptable limitations on speech. We will start with the harm principle and then move on to other more encompassing arguments for limiting speech.

Before we do this, however, the reader might wish to disagree with the above claims and warn of the dangers of the “slippery slope.” Those who support the slippery slope argument warn that the consequence of limiting speech is the inevitable slide into censorship and tyranny. Such arguments assume that we can be on or off the slope. In fact, no such choice exists: we are necessarily on the slope whether we like it or not, and the task is always to decide how far up or down we choose to go, not whether we should step off the slope altogether. It is worth noting that the slippery slope argument can be used to make the opposite point; one could argue with equal force that we should never allow any removal of government intervention because once we do we are on the slippery slope to anarchy, the state of nature, and a life that Hobbes described in Leviathan as “solitary, poore, nasty, brutish, and short” (1968, 186).

Another thing to note before we engage with the harm principle is that we are in fact free to speak as we like. Hence, freedom of speech differs from some other forms of freedom of action. If the government wants to prevent citizens engaging in certain actions, riding motor bikes for example, it can limit their freedom to do so by making sure that such vehicles are no longer available. For example, current bikes could be destroyed and a ban can be placed on future imports. Freedom of speech is a different case. A government cannot make it impossible to say certain things. The only thing it can do is punish people after they have said, written or published their thoughts. This means that we are free to speak or write in a way that we are not free to ride outlawed motorbikes. This is an important point; if we insist that legal prohibitions remove freedom then we have to hold the incoherent position that a person was unfree at the very moment she performed an action. The government would have to remove our vocal chords for us to be unfree in the same way as the motorcyclist is unfree.

A more persuasive analysis of freedom of speech suggests that the threat of a sanction makes it more difficult and potentially more costly to exercise our freedom. Such sanctions take two major forms. The first, and most serious, is legal punishment by the state, which usually consists of a financial penalty, but can stretch occasionally to imprisonment. The second threat of sanction comes from social disapprobation. People will often refrain from making public statements because they fear the ridicule and moral outrage of others. For example, one could expect a fair amount of these things if one made racist comments during a public lecture at a university. Usually it is the first type of sanction that catches our attention but, as we will see, John Stuart Mill provides a strong warning about the chilling effect of the latter form of social control.

We seem to have reached a paradoxical position. I started by claiming that there can be no such thing as a pure form of free speech: now I seem to be arguing that we are, in fact, free to say anything we like. The paradox is resolved by thinking of free speech in the following terms. I am, indeed, free to say what I like, but the state and other individuals can sometimes make that freedom more or less costly to exercise. This leads to the conclusion that we can attempt to regulate speech, but we cannot prevent it if a person is undeterred by the threat of sanction. The issue, therefore, boils down to assessing how cumbersome we wish to make it for people to say certain things. The best way to resolve the problem is to ignore the question of whether or not it is legitimate to attach penalties to some forms of speech. I have already suggested that all societies do (correctly) place some limits on free speech. If the reader doubts this, it might be worth reconsidering what life would be like with no prohibitions on libelous statements, child pornography, advertising content, and releasing state secrets. The list could go on. The real problem we face is deciding where to place the limits, and the next sections of the essay look at some possible solutions to this puzzle.

2. The Harm Principle and Free Speech

Given that Mill presented one of the first, and still perhaps the most famous liberal defense of free speech, I will focus on his claims in this essay and use them as a springboard for a more general discussion of free expression. In the footnote at the beginning of Chapter II of On Liberty , Mill makes a very bold statement:

If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered. (1978, 15)

This is a very strong defense of free speech; Mill tells us that any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. And Mill does mean everyone:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. (1978, 16)

Such liberty should exist with every subject matter so that we have “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological” (1978, 11). Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons.

This is as strong an argument for freedom of speech as we are likely to find. But as I already noted above, Mill also suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is “one very simple principle,” now usually referred to as the Harm Principle, which states that

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. (1978, 9)

There is a great deal of debate about what Mill had in mind when he referred to harm; for the purposes of this essay he will be taken to mean that an action has to directly and in the first instance invade the rights of a person (Mill himself uses the term rights, despite basing the arguments in the book on the principle of utility). The limits on free speech will be very narrow because it is difficult to support the claim that most speech causes harm to the rights of others. This is the position staked out by Mill in the first two chapters of On Liberty and it is a good starting point for a discussion of free speech because it is hard to imagine a more liberal position. Liberals find it very difficult to defend free speech once it can be demonstrated that its practice does actually invade the rights of others.

If we accept the argument based on the harm principle we need to ask “what types of speech, if any, cause harm?” Once we can answer this question, we have found the appropriate limits to free expression. The example Mill uses is in reference to corn dealers; he suggests that it is acceptable to claim that corn dealers starve the poor if such a view is expressed through the medium of the printed page. It is not acceptable to express the same view to an angry mob, ready to explode, that has gathered outside the house of the corn dealer. The difference between the two is that the latter is an expression “such as to constitute…a positive instigation to some mischievous act,” (1978, 53), namely, to place the rights, and possibly the life, of the corn dealer in danger. As Daniel Jacobson (2000) notes, it is important to remember that Mill will not sanction limits to free speech simply because someone is harmed by the statements of others. For example, the corn dealer may suffer severe financial hardship if he is accused of starving the poor. Mill distinguishes between legitimate and illegitimate harm, and it is only when speech causes a direct and clear violation of rights that it can be limited. The fact that Mill does not count accusations of starving the poor as causing legitimate harm to the rights of corn dealers suggests he wished to apply the harm principle sparingly. Other examples where the harm principle may apply include libel laws, blackmail, advertising blatant untruths about commercial products, advertising dangerous products to children (e.g. cigarettes), and securing truth in contracts. In most of these cases, it is possible to make an argument that harm has been committed and that rights have been violated.

There are other instances when the harm principle has been invoked but where it is more difficult to demonstrate that rights have been violated. Perhaps the most obvious example of this is the debate over pornography. As Feinberg notes in Offense to Others: the Moral Limits of the Criminal Law most attacks on pornography up to the 1970's were from social conservatives who found such material to be immoral and obscene; (Feinberg notes that there is no necessary link between pornography and obscenity; pornography is material that is intended to cause sexual arousal, whereas something is obscene when it causes repugnance, revulsion and shock. Pornography can be, but is not necessarily, obscene). In recent times the cause against pornography has been joined by some feminists who have maintained that pornography degrades, endangers, and harms the lives of women. This argument, to have force, must distinguish between pornography as a general class of material (aimed at sexual arousal) and pornography that causes harm by depicting acts that violently abuse women. If it can be demonstrated that this latter material significantly increases the risk that men will commit acts of physical violence against women, the harm principle can legitimately be invoked.

When pornography involves young children, most people will accept that it should be prohibited because of the harm that is being done to persons under the age of consent. It has proved much more difficult to make the same claim for consenting adults. It is hard to show that the actual people who appear in the books, magazines, films, videos and on the internet are being physically harmed, and it is even more difficult to demonstrate that harm results for women as a whole. Very few people would deny that violence against women is abhorrent and an all too common feature of our society, but how much of this is caused by violent pornography? One would have to show that a person who would not otherwise rape or batter females was caused to do so through exposure to material depicting violence to women.

Andrea Dworkin (1981) has attempted to show that harm is caused to women by pornography, but it has proven very difficult to draw a conclusive causal relationship. If pornographers were exhorting their readers to commit violence and rape, the case for prohibition would be much stronger, but they tend not to do this, just as films that depict murder do not actively incite the audience to mimic what they see on the screen. Remember that Mill's formulation of the harm principle suggests only speech that directly harms the rights of others in an illegitimate manner should be banned; finding such material offensive, obscene or outrageous is not sufficient grounds for prohibition. Overall, it seems very difficult to mount a compelling case for banning pornography (except in the case of minors) based on the concept of harm as formulated by Mill.

Another difficult case is hate speech. Most European liberal democracies have limitations on hate speech, but it is debatable whether these can be justified by the harm principle as formulated by Mill. One would have to show that such speech violated rights, directly and in the first instance. A famous example of hate speech is the Nazi march through Skokie, Illinois. In fact, the intention was not to engage in political speech at all, but simply to march through a predominantly Jewish community dressed in storm trooper uniforms and wearing swastikas (although the Illinois Supreme Court interpreted the wearing of swastikas as “symbolic political speech”). It is clear that most people, especially those who lived in Skokie, were outraged and offended by the march, but were they harmed? There was no plan to cause physical injury and the marchers did not intend to damage property.

The main argument against allowing the march, based on the harm principle, was that it would cause harm by inciting opponents of the march to riot. The problem with this claim is that it is the harm that could potentially be done to the people speaking that becomes the focal point and not the harm done to those who are the subject of the hate. To ban speech for this reason, i.e., for the good of the speaker, tends to undermine the basic right to free speech in the first place. If we turn to the local community who were on the wrong end of hate speech we might want to claim that they could be psychologically harmed, but this is more difficult to demonstrate than harm to a person's legal rights. It seems, therefore, that Mill's argument does not allow for state intervention in this case. If we base our defense of speech on the harm principle we are going to have very few sanctions imposed on the spoken and written word. It is only when we can show direct harm to rights, which will almost always mean when an attack is made against a specific individual or a small group of persons, that it is legitimate to impose a sanction. One response is to suggest that the harm principle can be defined in a less stringent manner than Mill's formulation. This is a complicated issue that I cannot delve into here. Suffice it to say that if we can, then more options might become available for prohibiting hate speech and violent pornography.

There are two basic responses to the harm principle as a means of limiting speech. One is that it is too narrow; the other is that it is too broad. This latter view is not often expressed because, as already noted, most people think that free speech should be limited if it does cause illegitimate harm. George Kateb (1996), however, has made an interesting argument that runs as follows. If we want to limit speech because of harm then we will have to ban a lot of political speech. Most of it is useless, a lot of it is offensive, and some of it causes harm because it is deceitful, and because it is aimed at discrediting specific groups. It also undermines democratic citizenship and stirs up nationalism and jingoism, which results in harm to citizens of other countries. Even worse than political discourse, according to Kateb, is religious speech; he claims that a lot of religious speech is hateful, useless, dishonest, and ferments war, bigotry and fundamentalism. It also creates bad self-image and feelings of guilt that can haunt persons throughout their lives. Pornography and hate speech, he claims, cause nowhere near as much harm as political and religious speech. His conclusion is that we do not want to ban these forms of speech and the harm principle, therefore, casts its net too far. Kateb's solution is to abandon the principle in favor of almost unlimited speech.

This is a powerful argument, but there seem to be at least two problems with the analysis. The first is that the harm principle would actually allow religious and political speech for the same reasons that it allows pornography and hate speech, namely that it is not possible to demonstrate that such speech does cause direct harm to rights. I doubt that Mill would support using his arguments about harm to ban political and religious speech. The second problem for Kateb is that if we accept he is right that such speech does cause harm in the sense of violating rights, the correct response is surely to start limiting political and religious speech. If Kateb's argument is sound he has shown that harm is more extensive than we might have thought; he has not demonstrated that the harm principle is invalid.

3. The Offense Principle and Free Speech

The other response to the harm principle is that it does not reach far enough. One of the most impressive arguments for this position comes from Joel Feinberg, who suggests that the harm principle cannot shoulder all of the work necessary for a principle of free speech. In some instances, Feinberg suggests, we also need an offense principle that can act as a guide to public censure. The basic idea is that the harm principle sets the bar too high and that we can legitimately prohibit some forms of expression because they are very offensive. Offending someone is less serious than harming someone, so the penalties imposed should be less severe than those for causing harm. As Feinberg notes, however, this has not always been the case and he cites a number of instances in the U.S. where penalties for sodomy and consensual incest have ranged from twenty years imprisonment to the death penalty. These are victimless crimes and hence the punishment has to have a basis in the supposed offensiveness of the behavior rather than the harm that is caused.

Such a principle is difficult to apply because many people take offense as the result of an overly sensitive disposition, or worse, because of bigotry and unjustified prejudice. At other times some people can be deeply offended by statements that others find mildly amusing. The furore over the Danish cartoons brings this starkly to the fore. Despite the difficulty of applying a standard of this kind, something like the offense principle operates widely in liberal democracies where citizens are penalized for a variety of activities, including speech, that would escape prosecution under the harm principle. Wandering around the local shopping mall naked, or engaging in sexual acts in public places are two obvious examples. Given the specific nature of this essay, I will not delve into the issue of offensive behavior in all its manifestations, and I will limit the discussion to offensive forms of speech. Feinberg suggests that a variety of factors need to be taken into account when deciding whether speech can be limited by the offense principle. These include the extent, duration and social value of the speech, the ease with which it can be avoided, the motives of the speaker, the number of people offended, the intensity of the offense, and the general interest of the community at large.

How does the offense principle help us deal with the issue of pornography? Given the above criteria, Feinberg argues that books should never be banned because the offensive material is easy to avoid. If one has freely decided to read the book for pleasure, the offense principle obviously does not apply, and if one does not want to read it, it is easily avoidable. And if one is unaware of the content and should become offended in the course of reading the text, the solution is simple-one simply closes the book. A similar argument would be applied to pornographic films. The French film Bais-Moi was in essence banned in Australia in 2002 because of its offensive material (it was denied a rating which meant that it could not be shown in cinemas). It would seem, however, that the offense principle outlined by Feinberg would not permit such prohibition because it is very easy to avoid being offended by the film. It should also be legal to advertise the film, but some limits could be placed on the content of the advertisement so that sexually explicit material is not placed on billboards in public places (because these are not easily avoidable). At first glance it might seem strange to have a more stringent speech code for advertisements than for the thing being advertised; the harm principle would not provide the grounds for such a distinction, but it is a logical conclusion of the offense principle.

What of pornography that is extremely offensive because of its violent or degrading content? In this case the offense is more profound: simply knowing that such films exist is enough to deeply offend many people. The difficulty here is that bare knowledge, i.e., being offended by merely knowing that something exists or is taking place, is not as serious as being offended by something that one does not like and that one cannot escape. If we allow that films should be banned because some people are offended, even when they do not have to view them, logical consistency demands that we allow the possibility of prohibiting many forms of expression. Many people find strong attacks on religion, or t.v. shows by religious fundamentalists deeply offensive. Hence, Feinberg argues that even though some forms of pornography are profoundly offensive to a lot of people, they should still be permitted.

Hate speech causes profound and personal offense. The discomfort that is caused to those who are the object of such attacks cannot easily be shrugged off. As in the case of violent pornography, the offense that is caused by the march through Skokie cannot be avoided simply by staying off the streets because the offense is taken over the bare knowledge that the march is taking place. As we have seen, however, bare knowledge does not seem sufficient grounds for prohibition. If we examine some of the other factors regarding offensive speech mentioned above, Feinberg suggests that the march through Skokie does not do very well: the social value of the speech seems to be marginal, the number of people offended will be large, and it is difficult to see how it is in the interests of the community. These reasons also hold for violent pornography.

A key difference, however, is in the intensity of the offense; it is particularly acute with hate speech because it is aimed at a relatively small and specific audience. The motivations of the speakers in the Skokie example seemed to be to incite fear and hatred and to directly insult the members of the community with Nazi symbols. Nor, according to Feinberg, was there any political content to the speech. The distinction between violent pornography and this specific example of hate speech is that a particular group of people were targeted and the message of hate was paraded in such a way that it could not be easily avoided.It is for these reasons that Feinberg suggests hate speech can be limited.

He also claims that when fighting words are used to provoke people who are prevented by law from using a fighting response, the offense is profound enough to allow for prohibition. If pornographers engaged in the same behavior, parading through neighborhoods where they were likely to meet great resistance and cause profound offense, they too should be prevented from doing so. It is clear, therefore, that the crucial component of the offense principle is the avoidability of the offensive material. For the argument to be consistent, it must follow that many forms of hate speech should still be allowed if the offense is easily avoidable. Nazis can still meet in private places, or even in public ones that are easily bypassed. Advertisements for such meetings can be edited (because they are less easy to avoid) but should not be banned.

4. Democracy and Free Speech

Very few liberals take the Millian view that only speech causing direct harm should be prohibited; most support some form of the offense principle. Some are willing to extend the realm of state interference further and argue that hate speech should be banned even if it does not cause harm or unavoidable offense. The reason it should be banned is that it is inconsistent with the underlying values of liberal democracy to brand some citizens as inferior to others on the grounds of race or sexual orientation. The same applies to pornography; it should be prevented because it is incompatible with democratic citizenship to portray women as sexual objects, who are often violently mistreated. Rae Langton, for example, starts from the liberal premise of equal concern and respect and concludes that it is justifiable to remove certain speech protections for pornographers. She avoids basing her argument on harm: “If, for example, there were conclusive evidence linking pornography to violence, one could simply justify a prohibitive strategy on the basis of the harm principle. However, the prohibitive arguments advanced in this article do not require empirical premises as strong as this…they rely instead on the notion of equality” (1990, 313).

Working within the framework of arguments supplied by Ronald Dworkin, who is opposed to prohibitive measures, she tries to demonstrate that egalitarian liberals such as Dworkin, should, in fact, support the prohibition of pornography. She suggests that we have “reason to be concerned about pornography, not because it is morally suspect, but because we care about equality and the rights of women” (1990, 311). This is an approach also taken by Catherine McKinnon (1987). She distinguishes, much like Feinberg, between pornography and erotica. Erotica might be explicit and create sexual arousal, neither of which is grounds for complaint. Pornography would not come under attack if it did the same thing as erotica; the complaint is that it portrays women in a manner that undermines their equal status as citizens: “We define pornography as the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities; enjoying pain or humiliation or rape; being tied up, cut up, mutilated, bruised, or physically hurt; in postures of sexual submission or servility or display; reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture; shown as filthy or inferior; bleeding, bruised or hurt in a context which makes these conditions sexual” (1987, 176).

Langton agrees and concludes that “women as a group have rights against the consumers of pornography, and thereby have rights that are trumps against the policy of permitting pornography…the permissive policy is in conflict with the principle of equal concern and respect, and that women accordingly have rights against it” (1990, 346). Because she is not basing her argument on the harm principle, she does not have to show that women are harmed by pornography. For the argument to be persuasive, however, one has to accept that permitting pornography does mean that women are not treated with equal concern and respect.

To argue the case above, one has to dilute one's support for freedom of expression in favor of other principles, such as equal respect for all citizens. This is a sensible approach according to Stanley Fish. He suggests that the task we face is not to arrive at hard and fast principles that govern all speech. Instead, we have to find a workable compromise that gives due weight to a variety of values. Supporters of this view will tend to remind us that when we are discussing free speech, we are not dealing with speech in isolation; what we are doing is comparing free speech with some other good. For instance, we have to decide whether it is better to place a higher value on speech than on the value of privacy, security, equality, or the prevention of harm.

I suggested early in this essay that to begin from a principle of unregulated speech is to start from a place that itself needs to be vigorously defended rather than simply assumed. Stanley Fish is of a similar temperament and suggests that we need to find a balance in which “we must consider in every case what is at stake and what are the risks and gains of alternative courses of action” (1994, 111). Is speech promoting or undermining our basic values? “If you don't ask this question, or some version of it, but just say that speech is speech and that's it, you are mystifying—presenting as an arbitrary and untheorized fiat—a policy that will seem whimsical or worse to those whose interests it harms or dismisses” (1994, 123).

In other words, there have to be reasons behind the argument to allow speech; we cannot simply say that the First Amendment says it is so, therefore it must be so. The task is not to come up with a principle that always favors expression, but rather, to decide what is good speech and what is bad speech. A good policy “will not assume that the only relevant sphere of action is the head and larynx of the individual speaker” (Fish, 1994, 126). Is it more in keeping with the values of a democratic society, in which every person is deemed equal, to allow or prohibit speech that singles out specific individuals and groups as less than equal? The answer, according to Fish, cannot be settled by simply appealing to a pre-ordained ideal of absolute free speech, because this is a principle that is itself in need of defense. Fish's answer is that, “it depends. I am not saying that First Amendment principles are inherently bad (they are inherently nothing), only that they are not always the appropriate reference point for situations involving the production of speech” (1994, 113). But, all things considered, “I am persuaded that at the present moment, right now, the risk of not attending to hate speech is greater than the risk that by regulating it we will deprive ourselves of valuable voices and insights or slide down the slippery slope towards tyranny. This is a judgement for which I can offer reasons but no guarantees” (1994, 115).

Hence, the boundaries of free speech cannot be set in stone by philosophical principles. It is the world of politics that decides what we can and cannot say, guided but not hidebound by the world of abstract philosophy. Fish suggests that free speech is about political victories and defeats. The very guidelines for marking off protected from unprotected speech are the result of this battle rather than truths in their own right: “No such thing as free (nonideologically constrained) speech; no such thing as a public forum purged of ideological pressures of exclusion” (Fish, 1994, 116). Speech always takes place in an environment of convictions, assumptions, and perceptions i.e., within the confines of a structured world. The thing to do, according to Fish, is get out there and argue for one's position.

We should ask three questions according to Fish: “[g]iven that it is speech, what does it do, do we want it to be done, and is more to be gained or lost by moving to curtail it?” (1994, 127). He suggests that the answers we arrive at will vary according to the context. Free speech will be more limited in the military, where the underlying value is hierarchy and authority, than it will be at a university where one of the main values is the expression of ideas. Even on campus, there will be different levels of appropriate speech. Spouting off at the fountain in the center of campus should be less regulated than what a professor can say during a lecture. It might well be acceptable for me to spend an hour of my time explaining to passers-by why Manchester United is such a great football team but it would be completely inappropriate (and open to censure) to do the same thing when I am supposed to be giving a lecture on Thomas Hobbes. A campus is not simply a “free speech forum but a workplace where people have contractual obligations, assigned duties, pedagogical and administrative responsibilities” (1994,129). Almost all places in which we interact are governed by underlying values and hence speech will have to fit in with these principles: “[r]egulation of free speech is a defining feature of everyday life” (Fish, 1994,129). Thinking of speech in this way removes a lot of the mystique. Whether we should ban hate speech is just another problem along the lines of whether we should allow university professors to talk about football in lectures.

Although Stanley Fish takes some of the mystique away from the value of speech, he still thinks of limitations largely in terms of other regarding consequences. There are arguments, however, that suggest speech can be limited to prevent harm being done to the speaker. The argument here is that the agent might not have a full grasp of the consequences of the action involved (whether it be speech or some other form of behavior) and hence can be prevented from engaging in the act. Arguments used in the Skokie case would fit into this category. Most liberals are wary of such arguments because we are now entering the realm of paternalistic intervention where it is assumed that the state knows better than the individual what is in his or her best interests.

Mill, for example, is an opponent of paternalism generally, but he does believe there are certain instances when intervention is warranted. He suggests that if a public official is certain that a bridge will collapse, he can prevent a person crossing. If, however, there is only a danger that it will collapse the person can be warned but not coerced. The decision here seems to depend on the likelihood of personal injury; the more certain injury becomes, the more legitimate the intervention. Prohibiting freedom of speech on these grounds is very questionable in all but extreme cases (it was not persuasive in the Skokie case) because it is very rare that speech would produce such a clear danger to the individual.

Hence we have exhausted the options that are open to the liberal regarding limitations on free speech and one cannot be classed as a liberal if one is willing to stray further into the arena of state intervention than already discussed. Liberals tend to be united in opposing paternalistic and moralistic justifications for limiting free expression. They have a strong presumption in favor of individual liberty because, it is argued, this is the only way that the autonomy of the individual can be respected. To prohibit speech for reasons other than those already mentioned means that one has to argue that it is permissible to limit speech because of its unsavory content, or as Feinberg puts it, one has to be willing to say that

[i]t can be morally legitimate for the state, by means of the criminal law, to prohibit certain types of action that cause neither harm nor offense to any one, on the grounds that such actions constitute or cause evils of other kinds. ( Harmless Wrongdoing , p. 3)

Acts can be “evil” if they are dangerous to a traditional way of life, because they are immoral, or because they hinder the perfectibility of the human race. Many arguments against pornography take the form that such material is wrong because of the moral harm it does to the consumer. Liberals oppose such views because they are not overly interested in trying to mold the moral character of citizens.

We began this examination of free speech with the harm principle; let us end with it and assess whether it helps us determine the proper limits of free expression. The principle suggests that we need to distinguish between legal sanction and social disapprobation as means of limiting speech. As already noted, the latter does not ban speech but it makes it more uncomfortable to utter unpopular statements. J.S. Mill does not seem to support the imposition of legal penalties unless they are sanctioned by the harm principle. As one would expect, Mill also seems to be worried by the use of social pressure as a means of limiting speech. Chapter III of On Liberty is an incredible assault on social censorship, expressed through the tyranny of the majority, because it produces stunted, pinched, hidebound and withered individuals: “everyone lives as under the eye of a hostile and dreaded censorship…[i]t does not occur to them to have any inclination except what is customary” (1978, 58). He continues:

the general tendency of things throughout the world is to render mediocrity the ascendant power among mankind…at present individuals are lost in the crowd…the only power deserving the name is that of masses…[i]t does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be the more and more pronounced individuality of those who stand on the higher eminences of thought. (1978, 63-4)

With these comments, and many of a similar ilk, Mill demonstrates his distaste of the apathetic, fickle, tedious, frightened and dangerous majority.

It is quite a surprise, therefore, to find that he also seems to embrace a fairly encompassing offense principle when the sanction does involve social disapprobation:

Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited. (1978, 97 [author's emphasis]

Similarly, he states that “The liberty of the individual must be thus far limited; he must not make himself a nuisance” (1978, 53). In the latter parts of On Liberty Mill also suggests that distasteful persons can be held in contempt, that we can avoid such persons (as long as we do not parade it), that we can warn others against the persons, and that we can persuade, cajole and remonstrate with those we deem offensive. These actions are legitimate as the free expression of those who happen to be offended as long as they are done as a spontaneous response to the person's faults and not as a form of punishment.

But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and are other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice,envy or resentment necessarily violates the rights of others. The only way that Mill can make such claims is by expanding his argument to include an offense principle and hence give up on the harm principle as the only legitimate grounds for interference with behavior. Overall, Mill[special-character:#146s arguments about ostracism and disapprobation seem to provide little protection for the individual who may have spoken in a non-harmful manner but who has nevertheless offended the sensibilities of the masses.

Hence we see that one of the great defenders of the harm principle seems to shy away from it at certain crucial points and it is unlikely that a defense of free speech can rest on the principle alone. It does, however, remain an elementary part of the liberal defense of individual freedom.

Liberals tend to defend freedom generally, and free speech in particular, for a variety of reasons beyond the harm principle; speech fosters authenticity, genius, creativity, individuality and human flourishing. Mill tells us specifically that if we ban speech the silenced opinion may be true, or contain a portion of the truth, and that unchallenged opinions become mere prejudices and dead dogmas that are inherited rather than adopted. These are empirical claims that require evidence. Is it likely that we enhance the cause of truth by allowing hate speech or violent and degrading forms of pornography? It is worth pondering the relationship between speech and truth. If we had a graph where one axis was truth and the other was free speech, would we get one extra unit of truth for every extra unit of free speech? How can such a thing even be measured? It is certainly questionable whether arguments degenerate into prejudice if they are not constantly challenged. Devil's advocates are often tedious rather than useful interlocutors. None of this is meant to suggest that free speech is not vitally important; this is, in fact, precisely the reason we need to find good arguments in its favor. But sometimes supporters of free speech, like its detractors, have a tendency to make assertions without providing compelling evidence to back them up.

In a liberal society, we have found that the harm principle provides reasons for limiting free speech when doing so prevents direct harm to rights. This means that very few speech acts should be prohibited. The offense principle has a wider reach than the harm principle, but it still recommends very limited intervention in the realm of free speech. All forms of speech that are found to be offensive but easily avoidable should go unpunished. This means that all forms of pornography and most forms of hate speech will escape punishment. If this argument is acceptable, it seems only logical that we should extend it to other forms of behavior. Public nudity, for example, causes offense to some people, but most of us find it at most a bit embarrassing, and it is avoided by a simple turn of the head. The same goes with nudity, sex, and coarse language on television. Neither the harm or the offense principles as outlined by Mill support criminalizing bigamy or drug use, nor the enforcement of seat belts, crash helmets and the like.

Some argue that speech can be limited for the sake of other liberal values, particularly the concern for democratic equality; the claim is not that speech should always lose out when it clashes with other fundamental principles that underpin modern liberal democracies, but that it should not be automatically privileged. To extend prohibitions on speech and other actions beyond this point requires an argument for a form of legal paternalism that suggests the state should decide what is acceptable for the safety and moral instruction of citizens, even if it means limiting actions that do not cause harm or unavoidable offense to others. It is up to the reader to decide if one of these positions is persuasive. It has certainly been the practice of most societies, even liberal-democratic ones, to impose some paternalistic restrictions on behavior and to limit speech because it causes offense. As we have seen, even Mill seems to back away somewhat from the harm principle. Hence the freedom of expression supported by the harm principle as outlined in Chapter One of On Liberty and by Feinberg's offense principle is still a possibility rather than a reality. It is also up to the reader to decide if it is an appealing possibility.

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[As of January 2008, typing “free speech” on Google will net millions of entries. Hence it is best to simply jump in and see what one can find. It is worth noting that almost all of them are devoted to the promotion of speech in the face of censorship. This reflects a strong bias on the internet in favor of the “slippery slope” view of free speech. There are not many entries where an argument is made for placing limitations on free expression. Wikipedia has a quite a few entries dealing with censorship, free speech, pornography, and crime statistics. Here are a few other cites to get you going.]

• American Civil Liberties Union
• Free Speech Movement archives (related to Berkeley in the 1960's)
• Freedom Forum , (a forum dedicated to free speech and a free press)
• Free Expression , Center for Democracy and Technology, (a website related to the issue of free speech and the internet)
• Electronic Frontiers Australia (an Australian website on censorship and free speech)
• The Kellor Center for the Study of the First Amendment

democracy | equality | Mill, John Stuart | paternalism | pornography: and censorship

Freedom of Speech

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Introduction

In this entry, freedom of speech will be treated solely as the subject of a political right, that is, a right of private persons against the state, leaving other topics, e.g., government speech, outside its purview. It will also be understood to encompass any instance of expression, whether or not it has propositional content, as speech, narrowly defined, does.

The Good of Free Speech

According to one family of views, the right to free speech is grounded in the good that is being produced by the guarantee of such a right. For some, the good consists in that free speech promotes the speaker’s interest in autonomy. For example, Mill ( 1859 , 31) writes that restricting speech compromises “the entire moral courage of the human mind.” (See also Brison 1998 ; Richards 1974 ; Riley 2005 .) Others contend that in a society where speech is free and viewpoints compete in a “marketplace of ideas,” the truth is more likely to emerge and become ascendant than in a society where viewpoints...

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Kyritsis, D. (2023). Freedom of Speech. In: Sellers, M., Kirste, S. (eds) Encyclopedia of the Philosophy of Law and Social Philosophy. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6730-0_693-1

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Question of the Month

What are the moral limits of free speech and action, each answer below receives a book. apologies to the many entrants not included..

The issue of free speech seems particularly relevant today. Academics can be reprimanded and even suspended for suggesting that British colonialism was not all bad, or for making a joking remark in a lift. Trolls threaten to rape or behead those whose opinions they don’t like. A group of minor celebrities are attempting to limit further the freedom of the press. In such circumstances it is urgent to find some criteria for establishing what is acceptable and what the moral limits are to free speech. This is easier said than done, as relativism is rife: my freedom of speech may be your cue for expensive litigation or physical retaliation. There are of course legal restrictions on freedom of speech: laws against slander and libel, hate speech, incitement to violence. But are these laws based on sound moral principles?

It’s more difficult to establish the moral limits to freedom of speech than those to freedom of action. John Stuart Mill’s ‘harm principle’ holds that one can do whatever one likes as long as one doesn’t harm other people. This principle is easier to apply to actions than to speech. Harmful actions leave bruises and scars, damaged property, stolen possessions. The mental harm that might be caused by free speech is more difficult to recognise and quantify. What is significant mental harm? Embarrassment? Distress? Anguish? Fear for one’s life? At what point does the free speech that causes this mental harm become morally unacceptable? Is it reasonable to allow more latitude for criticism when the targets of it are public figures rather than private individuals? Another problem is to decide what should be judged: the intention of the speaker, or the perception of the receiver? It should be the intention of the speaker that counts; but is there is a further onus on the speaker to tread carefully and treat predictable sensitivities tactfully?

Having posed many questions I find I have space only to enunciate a few general principles concerning the limits of free speech:

• The media and individuals should not disseminate known falsehoods, or information they are not fully justified in believing.

• The media and individuals must be free to make informed criticisms of politicians, the government, and its policies.

• People should be free to make informed criticism of religious and ideological tenets and beliefs. There is nothing stopping them making informed criticisms of scientific theories, either.

• People should not be criticised for what they are – for their race, colour, sexuality, etc. – but only for what they do .

Michael Brake, Epsom, Surrey

“Why should your right to freedom of speech trump a trans-person’s right not to be offended?”

With this question, Cathy Newman’s Channel 4 interview with psychologist Jordan Peterson found viral fame. Under discussion was Canada’s legislating for the right of transgendered people to be addressed by their preferred pronouns – something Peterson argues amounts to compelled speech. “In order to be able to think, you have to risk being offensive,” Peterson replies; “You’re certainly willing to risk offending me in the pursuit of truth.”

This encapsulates the central modern argument around free speech – should we limit one party’s freedom of expression in order to prevent offending another party? Few would argue against criminalising incitement to violence, for example; but do we have a right to simply not be offended?

One suspects that that champion of liberty, J.S. Mill, would have little sympathy with the idea. In On Liberty (1859), Mill describes freedom of speech (and of the press) as “one of the securities against corrupt or tyrannical government” (p.28), and asserts that any person should be allowed to hold and freely discuss any view, “however immoral it may be considered” (p.199). Mill’s only moral limitation was that one cannot harm another – a much debated caveat which, it seems reasonable to assume, does not include mere hurt feelings.

Two centuries before, Thomas Hobbes theorised that peaceful coexistence was only possible in human society when “a man… lay down his right to all things; and be contented with so much liberty against other men as he would allow other men against himself” ( Leviathan , 1651, p.80). Given Hobbes’ obsession with political stability, he would undoubtedly advocate censoring politically subversive speech. But on the moral issues at the individual level that dominate modern debates he appears to have had little to say. Perhaps a reformulation of that premise in Leviathan may help us here. Let’s imagine that each person may restrict the rights of another only to the extent to which that person would want their own rights restricted. From this it becomes very difficult for anyone who wishes to exercise their own free speech to restrict the speech of another. Do I want the freedom to assert my views? Then I must allow others the freedom to ridicule them. So, ultimately, for both Peterson and Newman, their own freedom of speech must come first, the other’s feelings must come second. We must learn, somehow, to live with that.

David Redfield, Kinsham, Powys

J.S. Mill’s idea that “power can be rightfully exercised over any member of a civilized community [only] to prevent harm to others ” is quite widely used in the modern world. Nowadays, we generally accept such civil liberties, limit state jurisdiction over individual conduct and value personal autonomy. Alongside recognizing the importance of individual freedom, and in line with Mill, many societies have also criminalized incitement to violence against racial and other minority groups.

There is a definite case for infringing speech and action only when it defends others from physical harm. In Mill’s own example, it may be acceptable to condemn someone in print, but not acceptable to condemn them before a mob outside their home. However, it could also be argued that speech and action may be restricted short of prevention of physical harm. Modern legal practice reflects this, prosecuting individuals even if their violent threats are not carried out. Additionally, consider libel: although not causing physical harm, spreading false information may damage someone’s reputation, or be sufficiently injurious in some other way, so that legal action and financial recompense is justifiable. There are other actions which, although not causing physical harm, nor even illegal, may also be unethical. Consider a millionaire who places money in off-shore accounts to avoid tax. They are shirking their responsibilities by evading the taxes that their fellow citizens pay.

There are other exceptional instances where free speech and action may appropriately be curtailed, such as in court cases. Knowledge of evidence or other information may need to be restricted, not only to protect those involved, but to ensure that the proper rule of law is observed. For example, a court case may be dropped if it is suspected the jury has been unduly swayed by leaked knowledge of the defendant’s previous criminal record.

It seems inevitable that speech and action must sometimes be restricted, albeit wisely, if we wish to live in a just society. Contrary to Mill, the limit on our freedom to speak and act as we please extends beyond the causing, and incitement to cause, physical harm, to causing other sorts of harms too.

Jonathan Tipton, Preston, Lancashire

All governments set legal limits to free speech; but as John Locke put it, “the business of laws is not to provide for the truth of opinions but for the safety and security of the commonwealth.” So what about moral limits to speech?

We must be allowed to make public use of our reason, even if just to test the correctness of our own judgement through the understanding of others. According to Immanuel Kant, reason itself can be a source of error and therefore “reason must subject itself to critique in all its undertakings and cannot restrict the freedom of critique through any prohibition…” So intellectual independence, according to Kant, cannot exist in community with others without an absolute freedom: “For if this freedom is denied, we are deprived at the same time of means of testing the correctness of our moral judgements, and we are exposed to error.” The belief that we act freely motivates us to act morally and in turn, according to Kant, by acting morally, we are free. Therefore putting any moral restrictions to free speech would limit our endeavour to build moral character, and our freedom.

To be wise, one needs to follow Buddha’s advice on Noble Silence, and simply shut up. But to be moral one needs the sacred right of free speech!

Nella Leontieva, Sydney

An ongoing debate in comedy provides an interesting microcosm by which to focus on the question. It asks, ‘Does a comedian have the freedom to speak for the sake of humour if it reinforces oppressive societal structures that limit freedom?’

Some argue that being ‘funny’ justifies the means. The 2017 documentary The Problem with Apu critiques The Simpsons character as a racial caricature of South Asians. In it, Simpsons writer and producer Dana Gould says that “there are some accents, that to white Americans… are just funny, period.” Yet according to the documentary’s writer Hari Kondabolu, the underrepresentation of South Asians in the US media in the 1990s led to repeated stereotyping references to Apu often outside the context of comedy.

I propose a maxim that aims to enable the practice of comedy while taking its reception seriously and avoiding the imposition of blanket understandings of ‘funny’ by those who might never experience why a joke is problematic. When making a joke, ask whether the person or people at whose expense the joke is being made could reasonably be expected to recognise its comedy value.

The maxim might appear Kantian, in that it offers a maxim which aims to conserve the universal right to freedom. Actually, it draws on insights from my study of Derrida and Heidegger – that supposedly categorical or universal ‘truths’ can have oppressive consequences. So it aims to recognise the multi-aspectival nature of what is ‘funny’. The ‘reasonable’ is also key here, given the common retorts that comedy is being ‘shut down’ by political correctness and that ‘any joke will offend someone’. The challenge is judging when offence is ‘reasonable’ – which is especially tricky given that a joke will be heard by audiences with complex identifies different to the comedian’s. A rule of thumb for working out what is reasonable would be to engage actively with critics rather than just assume that one’s own understanding can act as the arbiter of ‘funny’. If the critics are numerous and unified, then listen to them! My maxim moreover recognises that communal standards are historical and evolving, which calls for a constant self-critique, to engage actively and recognise where mistakes have been made.

On this understanding, the limits of free speech would be minimal and flexible rather than homogenising and universal, calling for constant self-critique via open engagement with others.

Tom Pryce, King’s College, Cambridge

If what is being said and/or done is both inappropriate and threatening , it goes beyond moral limits. An insult, for example, is inappropriate: it’s speech that it is reasonable to expect not to occur. A threat is anything that puts the well-being of at least one other person into question or at stake (a person cannot threaten themselves). If and only if both conditions are met, the thing being said or done has exceeded moral limits to free speech or action.

The classic example for the combination is shouting “Fire!” in a crowded theatre. If we assume that there is no fire, a person shouting “Fire!” is acting in an inappropriate way; they are doing something out of place. By itself this isn’t a sufficient condition for exceeding free speech limits; but if the individual shouts it in a way that causes the audience to panic, they put the safety of others at stake. Then they have acted in a way that is both inappropriate and threatening, so their action exceeds the proper limits of free speech.

There are situations in which either inappropriate behaviour might not put peoples’ well-being into jeopardy, or where threats are entirely appropriate. An example of the former is when someone refuses to take their shoes off when entering a building despite having been asked to do so; an instance of the latter might be when boxers at a weigh-in brag to each other what they’re going to do to each other during the fight. The former doesn’t cause recognisable harm, while the latter is not inappropriate (there may always be extra factors that complicate these claims).

Where political action is concerned, it is always possible that the ‘inappropriateness’ or ‘threat’ might only be perceived by a dominant power that is itself oppressing free speech. Therefore another qualification here is that it must always be shown that the ‘moral limits’ being tested are genuinely helpful to the self-determination of the people in general. Thus an act might be both threatening and otherwise inappropriate, but it might also be intended to undermine a repressive power, in which case it does not exceed moral limits to free speech/action, precisely because it acts against a political system which prevents speech and action from being freely exercised.

Alastair Gray, Brighton

Whenever the subject of freedom of speech or action comes up, I’m reminded of George Orwell’s 1984 and particularly his concept of doublethink. For while we all claim to support free speech and action,we often find it hard to tolerate opinions that challenge our own point of view or actions that go against our desires. Worldwide experience shows that political dissenters tend to be marginalized when they have differences of opinion with their political leaders. In the companies where we work, democratic management still remains a distant concept in the top-down chain of command. As regards the media, while many of us recognise that they’re a fundamental cornerstone of democracy, the fact is that they can be quite lacking in independence and objectivity. Much more worrying is the fact that a major trend is that reporting is not being backed by solid evidence.

Nevertheless, there does exist some basis for moral limits to freedom of speech and action, when we consider how this right has been used abusively to incite violence, hatred, racism, intolerance , manipulation, and distortion of reality. Taking a cue from Karl Popper’s paradox of tolerance, societies embracing openness should not tolerate the intolerant, since they would eventually be seized or destroyed by intolerance. Otherwise, in my opinion the moral assessment of someone’s expressions and actions needs to be derived from three main moral principles:

• What is hateful, hurtful or undesirable to you must be reciprocated in your behaviour to others.

• The moral worth of freedom of speech and action ultimately resides in the intention. It is one thing to express an opinion against a particular kind of religion, but having the intention to insult a person’s religious feeling is quite another.

• We should express opinions or conduct our behaviour with regard to rules of conduct conducive to the greatest happiness.

Ian Rizzo, Zabbar, Malta

I’m not clear whether your question concerns what we should not do and say, or whether it concerns what we should not be allowed to do and say. What we should not do or say (if anything) is a large subject, covering the whole of ethics. I won’t attempt to answer that here. I will deal with the more limited issue of what we should be allowed to do and say, or, more accurately (since I don’t really know what should be the case), what I approve of us being allowed to do, and, especially, to say.

With a few exceptions, I approve of people being free to speak. I want to belong to a culture in which people are allowed to express different ideas, to question beliefs, to pursue truth, and to debate what is true or right or desirable. In most societies through history, this has not been allowed much, and so it is a precious thing and I’d like it to be protected. In terms of limits to free speech, I would draw the line at threatening behaviour, harassment or instigation of violence. However, I wouldn’t approve of banning speech simply because other people don’t like it, or find the ideas expressed disturbing, offensive or insulting. In order to be able to freely debate beliefs, we need to be able to say what we think about other people’s beliefs. So we should not be compelled to show respect for their beliefs, but we should respect their right to hold and express those beliefs. This should apply regardless of whether people’s beliefs are, for example, racist or sexist. This is partly because, if we are to be free to pursue the truth about sexism, for example, we would need to be free to debate whether or not sexism can be justified.

Regarding freedom of action, this is a more complicated subject. Very briefly, I would allow mentally competent adults the freedom to damage their own interests, but, in very many cases, not the freedom to significantly damage other people’s interests without their consent.

Peter Spurrier, Halstead, Essex

I believe that the question, ‘What are the limits of moral action?’ is not answerable at this time. So, I will not try to answer it. Rather, I will propose a program (or two) for answering it.

If there is one single supreme moral principle, then the moral limit of free action is when that principle is violated. If there are many moral principles, then there are as many moral limits to free action as there are principles. The moral limit defined by any one principle would be when an action violates it.

In practice, almost all people refer to many moral principles for guidance. Moreover, they believe these principles to be binding on everyone else. So it seems that we would have to identify every moral principle in order to determine all the limits of free action.

The task of collecting all the moral principles in use would be one for anthropologists. However, once collected, we will see that some principles imply others, and that some contradict others. The principles will need to be clarified, ordered, some accepted, and some thrown away. This is the task of the philosopher.

Carrying out the program I’ve described would be a Herculean task. Unfortunately, this approach may be required to say we know the moral limits of free action with the utmost confidence.

The program may be hastened along by a two step process. First, we identify the known moral principles of greatest use in our culture. These would be principles used in personal, social, and political lives. No special expertise is needed for this. Second, we determine what these principles have in common. Philosophers have been at this task for thousands of years, and it’s on-going.

So I do not propose an answer to the question about the moral limits of free action. However, I do have an opinion about the territory within which the answer will be found. It is that of basic human rights. And I have an opinion about the form of the answer: You have reached the limits of free action or speech whenever you violate a person’s basic human rights. This is not so much an answer as a rough guide. Much more is needed even here. We must clarify the meanings of ‘basic human rights’ and ‘violation’, and we must satisfactorily apply the guide to specific kinds of cases.

John Talley, Rutherfordton, NC

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Speech and Harm: Controversies over Free Speech

Ishani Maitra and Mary Kate McGowan (eds.),  Speech and Harm: Controversies over Free Speech , Oxford University Press, 2012, 255pp., $35.00 (pbk), ISBN 9780199236275.

Reviewed by Frederick Schauer, University of Virginia

Philosophical work on the right to freedom of speech (or, as it is more commonly characterized outside of the United States, freedom of expression) has until relatively recently been largely celebratory. Or at least justificatory. Philosophers have started with the premise that there just is a right to free speech and have devoted their efforts to exploring its foundations and examining its implications. Even apart from John Stuart Mill's On Liberty , which remains the touchstone for much work in this justificatory vein, we see important work identifying the roots of a distinct right to freedom of speech in listener autonomy (Scanlon 1972), speaker autonomy (Nagel 1995), speaker dignity and respect (Dworkin 1977, pp. 201-205), democratic theory (Meiklejohn 1948), personal identity (Raz 1991), freedom of thought (Shiffrin 2010), and straight utility-maximization (Sumner 2004), among many others. And although this scholarship has been important and illuminating, it would be a stretch to describe very much of it as deeply skeptical. And the terrain in legal scholarship has been even flatter, with the topic of free speech dominated by Americans seeking to justify the uniquely strong protection of freedom of speech and press in the United States, and with dissenting voices few and far between.

The terrain started to shift a few decades ago, largely as a consequence of two different phenomena. One was the emergent attention to various forms of racist speech, typically protected in the United States and rarely protected elsewhere. The American approach could be and frequently was defended with standard slippery-slope and related arguments, but the difficulty of saying that such speech was harmless, coupled with the exceptionalism of the American approach (Schauer 2005), made it far easier for philosophers and others to argue that principles of equality and dignity justified restrictions. And at roughly the same time as free-speech skepticism in the context of so-called hate speech became more visible, the feminist anti-pornography movement called insistent attention to the harms of the kind of speech that traditional liberals had characterized as harmless, and at the same time made it harder to deny the claims of gender equality that lay behind the call for refusing to tolerate images, especially, whose production and dissemination embodied and fostered an environment in which sex discrimination flourished and the problem of sexual violence was downplayed.

The feminist anti-pornography movement not only generated a focus on the harms of images endorsing sexual violence (most of which are not sexually explicit, and thus not pornographic according to conventional definitions), but also fostered a distinct strand of explicitly analytic philosophical work supporting such arguments. Catharine MacKinnon, most prominently, had influentially argued that pornography not only caused but also constituted sex discrimination (MacKinnon 1987, 1993). A common response to such claims was that they needed to be understood metaphorically, as part of a public campaign for legal and social change, but not as an argument that could stand up to serious philosophical scrutiny. And in response to these responses, a group of philosophers, drawing heavily but not exclusively on speech act theory, sought to demonstrate that beneath the rhetoric of MacKinnon and others was a serious and novel philosophical claim -- that the speaking capacity of speakers can be curtailed by the speech of others. If those who dominate a linguistic community can with their words and their usages produce a change in the conventions of language such that "zebra" no longer refers to zebras but instead to crocodiles, it becomes impossible, or at least more difficult, to refer to zebras. Think, for example, of how difficult it has become in recent years to use the phrase "begging the question" in its traditionally proper sense, now that the words of others have made the phrase synonymous with "inviting the question." Similarly, therefore, the dominant forces in a linguistic community can with their words make it difficult or impossible for women to say "no" when they mean "no," or in other ways express their thoughts, feelings, and ideas. This is, to oversimplify, the essence of the argument first made by Melinda Vadas (Vadas 1987), developed more deeply and influentially by Rae Langton (Langton 1993), and then made increasingly more complex and sophisticated by additional work by Langton, as well as in influential books and articles by Susan Dwyer (Dwyer, 1993), Jennifer Hornsby (Hornsby, 1995), and a significant number of others.

The arguments of Langton and others can be understood in both politically strategic and in philosophically important ways. As political strategy, couching the harms of certain forms of speech in terms of "silencing" (MacKinnon's word) has the strategic advantage of refusing to concede the free speech position to the opponents of restriction. If speech is to be restricted or sanctioned because of its effect on the speech of others, then limiting speech is on both sides of the equation, and the question can no longer be thought of in terms of free speech versus something else, but rather as the speech of one versus the speech of another. In some contexts this shifting of the grounds of argument may not be important, but as long as arguments from free speech have a substantial degree of positive cultural resonance, then refusing to concede the free speech ground to one's opponents is good political strategy.

But the arguments are more than simply strategic. The philosophically important point is that language is a conventional practice, and thus the ways in which we can use and not use language are conventionally determined. Moreover, the conventions themselves are made and remade by the use of language, and thus speaking itself establishes the conventions by which members of a linguistic community can speak and establishes the conventions that determine what can be said and what cannot.

Speech and Harm is best and most valuably understood as an important collection of new articles within this last and philosophically most important tradition. The book is a bit of a grab bag. Andrew Altman defends the American approach to Holocaust Denial in particular and hate speech in general against the calls for restriction, and Laura Beth Nielsen offers an ethnographic account of the circumstances in which people do and do not "talk back," with the important, even if not surprising, conclusion that patterns of cultural dominance strongly influence who talks back and who does not. Both are useful contributions but seem a bit out of place in a book where other contributors -- Ishani Maitra, Rae Langton, Katharine Gelber, Mary Kate McGowan, Lynne Tirrell, and Caroline West, along with a substantive "Foreword" by MacKinnon -- are all focused on the philosophical dimensions of the speech act elaboration of the basic "silencing" claim. Indeed, philosophers will likely find less explicit philosophical content in Gelber's more political and legal doctrinal approach to the silencing issue and in MacKinnon's overview. In important ways, therefore, the philosophical heart of the book is in the chapters by Maitra, Langton, McGowan, Tirrell, and West, and these are the ones on which I will concentrate here.

Although Langton's prior work in the modern tradition just described has been focused on pornography, here she extends her arguments to other forms of hate speech -- racist speech, in particular -- and, of perhaps even greater philosophical interest, adds an interesting and important twist. Drawing explicitly on Robert Stalnaker's idea of linguistic "common ground" (Stalnaker 2002), and also, albeit less heavily, on David Lewis's "Scorekeeping in a Language Game" (Lewis 1983), Langton distinguishes the pragmatics of hate speech's consequences from the consequences caused by argumentative persuasion, by psychological conditioning, and by the phenomenon of imitation. Indeed, she even distinguishes her current view of the pragmatics of hate speech from the speech act account that she and others have offered elsewhere. Here she sees much of hate speech as involving often unspoken factual presuppositions, such as the presupposition that the described groups have such-and-such- undesirable characteristics. Hearers who wish to find common ground with speakers, therefore, or who wish to participate in the same language game, will find themselves inclined to accept a hate speaker's factual presuppositions, and in this way will be drawn, by virtue of the desire to speak a common language, into accepting factual claims that they might previously have resisted.

In developing her argument, Langton is aware of its empirical dimensions, but is worried about "ced[ing] this territory to the psychologist" (85). Yet perhaps she should not be so concerned. Here, as elsewhere, good rigorous philosophy, as with Langton's on this occasion, need not be thought of as mutually exclusive with cognitive psychology, social psychology, or other domains of empirical inquiry. And so we might well be interested in the circumstances under which someone wishes to find linguistic common ground with someone else, the circumstances under which finding that common ground would require accepting otherwise unaccepted or unknown factual presuppositions, and the circumstances under which people would or would not find, at some level of consciousness, that accepting the hitherto unacceptable is too high a price to pay. The idea of common ground is, as used by Langton, a valuable and new way of understanding how hate speech of all varieties might have effects on some people on some topics at some times, but there is no reason to believe that the question as insightfully formulated philosophically by Langton cannot then be pursued fruitfully in ways and with methods that are as much empirical as they are conceptual.

In advancing her argument about what she calls the "pragmatic model" of hate speech's consequences, Langton distinguishes the pragmatic model from the "speech act" model, and it is the speech act model that is developed in new directions here in McGowan's contribution. Her principal example is the "Whites Only" sign on a restaurant or hotel, and, drawing on J.L. Austin's idea of an exercitive -- an utterance that enacts a fact about what is permissible -- she argues persuasively that much of hate speech, and not just a "Whites Only" sign, is explicitly or implicitly an exercitive in just this sense. The speech does not just tell people what is permissible or not, and in that sense it is not strictly propositional. Rather, the speech act makes things impermissible, and thus constitutes rather than reports an act of discrimination.

For McGowan, the value in seeing certain acts of hate speech as constituting rather than causing or reporting discrimination lies in explaining why such acts should be understood as lying outside the coverage (and not just the protection, Schauer 2004) of the American First Amendment or any other principle of freedom of speech or freedom of expression. Just as the terms of a contract constitute rather than report or cause an agreement (the example is mine and not McGowan's), and just as prohibiting the "Whites Only" sign is not plausibly taken to be the kind of speech (in the ordinary language sense of that word) that even implicates the idea of free speech, so too should the speech that constitutes discrimination not be taken, McGowan argues, as justifying a plausible First Amendment objection.

As with Langton's argument, McGowan's philosophically astute claims often rely on empirical presuppositions that could be tested with empirical methods. In what is the most imaginative and important part of her contribution, McGowan identifies racism itself as a norm-governed activity and urges us to see that racist utterances can and often do change the norms of the norm-governed activity -- they are, as she says, covertly exercitive, because they are part of the practice of constituting the norms of the norm-governed activity. But McGowan is slightly too quick in moving from her valuable insight about the way in which racist speech can operate to create permissibility norms in the practice of racism to the extent to which they in fact do so. Her suppositions about this seem largely sound, but they are empirical nonetheless. Not every act in a norm-governed activity is norm-creating (or even norm-reinforcing), as opposed to norm-following, and we might want to start with McGowan's insights to design an empirical study in which we examined and tested the empirical claims that McGowan makes about the role that racist speech in general or particular acts of racist speech in particular play in constituting the norms of the practice of racism.

The chapter by Maitra is in much the same vein, albeit with a different philosophical focus. A widely-discussed question in the literature on speech acts and hate speech is the question of authority. Do the silencing, disempowering, and subordinating consequences of speech require an authoritative speaker, and does this authority come from rank, social position, and the like? Maitra addresses this question directly, arguing that "ordinary speakers" can have the kind of authority that can produce subordination. She offers a careful analysis of the different ways in which such consequences could ensue, but at the heart of many of them is the idea that speaking is a cooperative, coordinated, and conventional activity. If that is so, then speaking is, in McGowan's sense, both norm-creating and norm-governed. And if it is that, and if the norms of speaking and the norms that speech creates and reinforces emerge from below -- from the ground up rather than imposed from top down -- then every participant in the language game has a kind of authority and at least some pro rata role in producing the authoritative norms of the collective process. As with McGowan's argument, Maitra's could benefit from additional empirical support, exploring which ordinary speakers have which kind of authority or power in which kinds of circumstances, but she lays the groundwork for just such an empirical examination. Pace Langton's way of worrying about "ceding" the territory to the psychologists, it is perhaps better to see philosophical work as establishing testable hypotheses and clarifying the nature of the empirical work to be done. In this way, no discipline is ceding anything to the other, but rather they are working together in an effective way.

Indeed, perhaps the best way of understanding Tirrell's contribution is as providing some empirical support for kinds of claims made by McGowan and Maitra. Tirrell's careful analysis of the role that derogatory terms -- words -- played in the 1994 genocide in Rwanda fits well with McGowan's and Maitra's arguments, and Tirrell herself situates her case study within a theoretical framework that is a valuable complement to McGowan's. Thus, Tirrell says that "When speaker A uses a racial epithet to tell her friend B to stay away from a particular racial group of people, A sets up an insider/outsider relation, whereby A and B are not members of that group" (191). Here "sets up" is the crucial operative phrase, and the dynamic that Tirrell depicts and analyzes theoretically is not only compatible with McGowan's view about the permission-enacting force of speech, but is also admirably illustrated and empirically supported by the Rwanda example.

Of all of this volume's contributions in the general "speech act" vein, West's is the one most focused on freedom of speech as such. And she addresses directly the impetus for the silencing argument. If silencing does indeed occur, then the consequence will be less speech rather than more. And identifying the possibility that some speech might thereby produce less speech is not only about the strategy of the silencing argument and anti-pornography arguments from MacKinnon to the present. It is also about competing visions of freedom of speech itself. If free speech is largely or entirely about the negative right of a speaker to be free from external interference, especially by government, then a concern about how much speech there is becomes decidedly secondary. But if free speech is a positive value (putting aside whether it is a positive and enforceable right), then we are right to be concerned with how much speech there is and not just with the identification of sources of restriction. Mill very indirectly hints at this idea when he notes the value of the Catholic Church's institution of the Devil's Advocate, because in doing so he appears to recognize (but not do very much with) the possibility that if speech is valuable for epistemic (or other) purposes, then it is important to facilitate or create positive opportunities for speech and not just remove a certain set of negative impediments to it. In asking us to focus on the way in which some speech silences other speech, and in emphasizing that considerations of free speech itself might tell in favor of and not just against the regulation of hate speech, West opens up the vital inquiry into whether the very idea of free speech is just negative in the sense I have just explained, or whether it has positive dimensions that should lead us to be concerned about just how much speech there is, and about how wide a range of speech and speakers actually exist.

This book is subtitled "Controversies Over Free Speech," but in fact many of the existing controversies over free speech are depressingly conventional. Most of the settings for academic or "real world" free speech controversies are governmental restrictions of speakers, and most of the academic contributions still adopt the standard Millian paradigm for how we should understand the problem. Individuals are seen as the speakers, and governments are seen as the restrictors. The value of speech is then typically articulated in terms of some variety of individual self-expression, or in some way in which speech serves important epistemic or democracy-supporting functions. The speech-act turn in free speech theory is best understood, therefore, not merely as being about pornography, or about hate speech more generally, but as a new way of thinking about speech, its value, and its dangers. This new way need not supplant the more traditional understandings of the problem, but it is an important new direction, and one that is both consolidated and taken a step further in much that is contained in this important collection.

Dworkin, Ronald. 1977. Taking Rights Seriously . London, Duckworth.

Dwyer, Susan. 1995. "Constructing the 'Problem' of Pornography," in Susan Dwyer, ed., The Problem of Pornography (Belmont, Ca: Wadsworth), pp. 1-20.

Hornsby, Jennifer. 1993. "Speech Acts and Pornography." Women's Philosophy Review , 10, 38-45.

Langton, Rae. 1993. "Speech Acts and Unspeakable Acts." Philosophy and Public Affairs , 22, 293-330.

Lewis, David. 1983. "Scorekeeping in a Language Game," in Philosophical Papers (vol. 1) (Oxford: Oxford University Press), pp. 233-249.

MacKinnon, Catharine A. 1987. Feminism Unmodified. Cambridge, MA: Harvard University Press.

MacKinnon, Catharine A. 1993. Only Words . Cambridge, MA: Harvard University Press.

Meiklejohn, Alexander. 1948. Free Speech and Its Relation to Self-Government . New York: Harper & Row.

Nagel, Thomas. 1995. "Personal Rights and Public Space." Philosophy and Public Affairs , 24, 83-107.

Raz, Joseph. 1991. "Free Expression and Personal Identification." Oxford Journal of Legal Studies , 11, 303-324.

Scanlon, Thomas. 1972. "A Theory of Freedom of Expression." Philosophy and Public Affairs , 1, 204-226.

Schauer, Frederick. 2004. "The Boundaries of the First Amendment: a Preliminary Exploration of Constitutional Salience." Harvard Law Review , 117, 1765-1809.

Schauer, Frederick. 2005. "The Exceptional First Amendment," in Michael Ignatieff, ed., American Exceptionalism and Human Rights Princeton: Princeton University Press), pp. 29-56.

Shiffrin, Seana Valentine. 2011. "A Thinker-Based Approach to Freedom of Speech." Constitutional Commentary , 283-307.

Stalnaker, Robert. 2002. "Common Ground." Linguistics and Philosophy , 25, 701-721.

Sumner, L.W. 2004. The Hateful and the Obscene: Studies in the Limits of Free Expression . Toronto: University of Toronto Press.

Vadas, Melinda. 1987. "A First Look at the Pornography/Civil Rights Ordinance: Could Pornography Be the Subordination of Women?" Journal of Philosophy , 84, 487-511.

Home — Essay Samples — Social Issues — Freedom of Speech — The Significance of Freedom of Speech

The Significance of Freedom of Speech

• Categories: Freedom of Speech

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Published: Jan 29, 2024

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Table of contents

Definition of freedom of speech, importance of freedom of speech, limitations on freedom of speech, controversial cases and debates, freedom of speech in the digital age, counterarguments and rebuttal.

• United Nations. "Universal Declaration of Human Rights." United Nations, 1948.
• Shapiro, David L. "Freedom of Speech: History , Ideas, and Legal Due Process." New York University Press, 2005.
• Matal, Michael (ed). "Freedom of Speech." Oxford University Press, 2017.

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Why Free Speech Is An Important Freedom Argumentative Essay

Introduction.

Freedom of speech is synonymous with freedom of expression. These two terms do not only explain the ability to speak or voice opinions without limitation or interference, but also the use of other means in communicating or impacting information.

This includes the use of expressions, music and art like painting, photography, and performing. In many countries, this freedom is provided for in as a basic freedom. Under the Universal Declaration of human rights in the United Nations there is a provision for this freedom. There are many genuine reasons why free speech is an important freedom.

Expressing oneself is a basic and important aspect of life and is also part of the basis for communication; it is more instinctive than learned. Throughout childhood and life, freedom of speech supports the learning of an individual through the acquisition of new views, ideas, concepts and theories in scientific, social and other fields of education.

One is able to participate in healthy debates and discussions, learn how to win and persuade in arguments and tolerate or even accept other people’s perceptions and ways of thinking. When an individual is able to express their ideas and opinions, it enables them to relate with others, participate in and enjoy interaction and bonding with other members of a group, team and community.

The main importance of speech learning and development is to facilitate expression and help an individual to live in harmony with other people in society, making sure that there needs are met and their rights, values and principles are not violated. Limiting or interfering with the freedom to speak and express oneself is a big violation of the basic rights of an individual and it restrains an individual from living a normal, productive and independent life.

Freedom of speech is an important aspect of social life in a civilized and democratic society. It enables people to make decisions on their rulers, systems of development and administration and initiate debates and discussions on important issues that concern public policy and governance.

People can voice their concerns over any problems or issues on accountability, responsibility and transparency of leadership. Freedom of speech is essential in the maintaining of law and order and making sure that there are checks and balances on individuals or groups which violate the law.

Although there has been debate on the justification of freedom of speech, it is important to realize that society cannot develop or advance when imparting of and access to information is impeded. In some instances privacy, control and protection of information is required but this does not mean that information should be completely barred from the public.

Freedom of expression is also important where social and cultural issues are concerned. When people are at liberty to express their opinions on critical issues concerning social values, norms and standards, social harmony and order is achieved.

In order to facilitate effective change which is inevitable, sensitive Issues concerning social life, like abortion, aesthesia, divorce, parenting, marriage etc. should be open to debate whether there is consensus or not. It is obviously clear that not all forms and means of freedom of expression that supported and defended but in order to prevent social tension and chaos people should be free to speak.

There are many reasons why free speech is an important freedom. Most societies agree that there should be clearly set guarantees on protecting and defending of this freedom without very little limitation except when it is very necessary and there has been general consensus on taking action against disbursement of information.

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Those Who Preach Free Speech Need to Practice It

Too many leaders, on campus and in government, are failing to uphold the First Amendment rights they claim to champion.

Updated at 9:35 a.m. ET on April 30, 2024

Say you’re a college senior, just a few weeks from graduation. For as long as you can remember—even back in high school, before you set foot on campus—older people have talked about free speech. More specifically, older people have talked about free speech and you : whether your generation understands it, whether you believe in it, whether you can handle it.

After watching some of those same people order crackdowns on campus protests over the past few days, you might have a few questions for them.

Last week, from New York to Texas, cops stormed college campuses clad in riot gear. They weren’t there to confront active shooters, thank goodness, or answer bomb threats. Instead, they were there to conduct mass arrests of students protesting the war in Gaza.

As the legal director of a First Amendment advocacy nonprofit, I teach students across the country that the government can’t silence speakers because of their beliefs, even—and perhaps especially—if those beliefs are unpopular or cause offense. That’s a foundational principle of free-speech law. But many of the crackdowns appear to be a direct reaction to the protesters’ views about Israel.

After sending a phalanx of state law-enforcement officers into the University of Texas at Austin campus, for example, Governor Greg Abbott announced on X that students “joining in hate-filled, antisemitic protests at any public college or university in Texas should be expelled.”

Erwin Chemerinsky: No one has a right to protest in my home

But no First Amendment exception exists for “hate-filled” speech. And for good reason: In our pluralistic democracy, everyone has their own subjective idea of what, if any, speech is too “hateful” to hear, making an objective definition impossible. And empowering the government to draw that line will inevitably silence dissent.

At UT, the officers arrested scores of protesters for “ trespassing .” But the students don’t appear to have violated school rules. And you can’t trespass on a place where you have the right to be, as students at the public universities they attend clearly do. Even a cameraman for a local news station was tackled and arrested . The next day, the Travis County attorney’s office dropped all of the trespassing charges for lack of probable cause—a telling indicator of the disturbingly authoritarian response. (Shockingly, the cameraman does face a felony charge , for allegedly assaulting a police officer—an allegation difficult to square with video of his arrest.) The government can’t throw Americans in jail for exercising their First Amendment right to peaceful protest.

Governor Abbott’s illiberal show of force has no place in a free country. It’s especially galling given the governor’s previous posture as a stalwart defender of campus free speech: In June 2019, he signed a law prohibiting Texas’s public colleges and universities from shutting down campus speakers because of their ideology. So much for that.

Governor Abbott isn’t alone. During her congressional testimony earlier this month, Columbia University President Minouche Shafik pledged investigations of students and faculty who voiced allegedly anti-Semitic criticism of Israel and Zionism, and agreed—on the fly—to remove a professor from his position as a committee chair because of his speech.

Michael Powell: The unreality of Columbia’s ‘liberated zone’

Columbia is a private institution, so it isn’t bound by the First Amendment. But the university promises freedom of expression to its students and faculty—and Shafik’s willingness to sacrifice faculty and student rights to appease hostile members of Congress betrays those promises.

If such things had happened only at UT and Columbia, that would be bad enough—but the problem is spreading. At Emory University, in Atlanta, police officers reportedly used tear gas and Tasers against protesters. State troopers with rifles directed toward protesters stood watch on a rooftop at Ohio State University. At Indiana University, administrators rushed out a last-minute, overnight policy change to justify a similar show of force from law enforcement, resulting in 34 arrests. It’s hard to keep up.

Students nationwide are watching how the adults who professed to care about free speech are responding under pressure. And they are learning that those adults don’t really mean what they say about the First Amendment. That’s a dangerous lesson. Our schools and universities could still teach the country a better one.

“Free Speech 101” starts here: The First Amendment protects an enormous amount of speech, including speech that some, many, perhaps most Americans would find deeply offensive. You may not like pro-Palestine speech; you may not like pro-Israel speech. You may think some of it veers into bigotry. The answer is to ignore it, mock it, debate it, even counterprotest it. But don’t call in the SWAT team.

George Packer: The campus-left occupation that broke higher education

Granted, free speech is not without carefully designated exceptions, and these exceptions are important but narrow. True threats and intimidation, properly defined, are not protected by the First Amendment. Neither is discriminatory harassment. Violence is never protected.

And public universities can maintain reasonable “time, place, and manner” restrictions on speech. That means, for example, that for the authorities to place a ban on playing heavily amplified sound right outside the dorms at 2 a.m. likely does not violate the First Amendment. A prohibition on camping overnight in the quad probably doesn’t either. And taking over a campus building, as Columbia students did early this morning , is not protected.

But the enforcement of these rules must be evenhanded and proportionate. The use of force should be a last resort. Students must be given clear notice about what conduct crosses a line. And any student facing punishment for an alleged infringement should receive a fair hearing. Consistency counts. Our leaders—in government, in university administration—must demonstrate their commitment to free expression in both word and deed.

Students are protesting on campuses nationwide, and they’re watching the reaction of university presidents and elected officials closely. The current moment presents a generational challenge: Do older people and people in authority really mean what they say about the First Amendment? Do they believe in free speech—and can they handle it? Right now, too many leaders are failing the test.

54 years after Kent State: What limits are there to freedoms of speech and protest?

Professor Dan Kobil teaches constitutional law at Capital University Law School in Columbus .  

The 54th anniversary of the tragedy at Kent State University where Ohio national guardsmen fired into a crowd of anti-war protestors killing four students was Saturday.

As we again confront a wave of demonstrations at campuses across the country regarding the war in Gaza, it is important to be mindful of both the protections and limitations of the U.S. Constitution when it comes to protests.

Demonstrators are acting consistently with the First Amendment, and within an American tradition of civil disobedience, when they engage in peaceful protest. Though the First Amendment provides that government cannot limit freedom of “speech,” courts have long recognized that speech includes conduct — so long as it communicates a message. 

'Utter turmoil': Former National Guardsman reflects on Kent State tragedy of May 4, 1970

How far can protests go legally?

Examples of expressive conduct may include marches, sit-ins, and even flag burning. 

American thinkers from Thomas Jefferson to Henry David Thoreau to Martin Luther King have all endorsed acts of peaceful rebellion to bring government leaders to the negotiating table, which is the goal of many campus protestors.

However, when protestors move farther away from words and engage in destructive actions, they forfeit certain protections of the First Amendment.  That is because conduct itself can typically be regulated and punished without offending the Constitution. 

Protestors who destroy university property or invade classrooms and administrative buildings can be disciplined for this conduct, despite claims that they were acting in order to draw attention to their message.

The Supreme Court has held that anti-war demonstrators who burned their draft cards could be punished for destroying important Selective Service documents, so long as the government was not using the law to suppress the protestors’ message.

Does free speech come with restrictions?

The First Amendment also does not prevent the government from enforcing reasonable time, place, and manner restrictions on speech, as long as the rules are applied even-handedly. Thus, a government actor such as Ohio State University could impose reasonable limits on the hours of all protests, or the decibel levels of sound amplification systems. 

What about encampments?

OSU’s prohibition against overnight encampments would likely be viewed as a reasonable restriction on the “manner” of speech, assuming it has been enforced consistently in the past. 

The Supreme Court upheld a U.S. Park Service regulation that prohibited sleeping in Lafayette Park overnight as a reasonable “manner of speech” regulation, even applied to protestors attempting to call attention to the plight of the homeless.

Finally, the Constitution does not protect speech that goes beyond forceful advocacy, and in a few narrow circumstances words themselves can be punished if they are sufficiently threatening. For instance, if campus protestors urged imminent violence against university personnel or students, those words could likely be a grounds for punishment notwithstanding the protections of the First Amendment. 

Ohio State protest wasn't peaceful. Activist, supporters should stop clutching their pearls

Supreme Court precedent makes clear that speakers who advocate imminent unlawful conduct can be punished if their words are uttered in circumstances where serious lawless conduct is likely to occur.

When does the response go too far?

Of course, even when the government is acting within its authority to regulate protests, it cannot use excessive force.  To most observers, the guardsmen at Kent State shooting into a crowd of unarmed protestors was a tragic example of the improper use of force. 

The military-style deployment of highly armed police at campus protests likewise could invite the escalation of violence. Institutions of higher learning, which seek to impart values of tolerance, civil discourse, and respect for others must explore every possible means of deescalating tense situations before resorting to force.

Ted Carter, you turned campus into military zone. Your goons crushed protester's rights.

Northwestern University and Brown University recently succeeded in doing just that, avoiding violence by negotiating a greements with their protesting students. 

In the end, the First Amendment is a powerful tool that promotes democracy by limiting the power of government to squelch dissenting views. But it is up to us as citizens to exercise these freedoms in a responsible manner, consistent with the enjoyment of the blessings of liberty.

Professor Dan Kobil teaches constitutional law at Capital University Law School in Columbus .

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14 Freedom of Speech and Religion

Andrew Altman is Professor of Philosophy at Georgia State University. He received his Ph.D. from Columbia University in 1977 and was a Fellow in Law and Philosophy at Harvard Law School in 1984–5. Professor Altman is author of Critical Legal Studies: A Liberal Critique (1990) and Arguing about Law: An Introduction to Legal Philosophy (2001). His articles on sexual harassment, hate speech, and hate- crimes legislation have appeared in Philosophy and Public Affairs, Ethics, and Law and Philosophy.

• Published: 02 September 2009
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Freedom of speech and religion are among the central values of modern constitutional democracies. Efforts to understand what these freedoms mean and why they are important, and to translate them into enduring institutional arrangements, constitute a major part of the history of such democracies. As the twenty-first century begins, the political and theoretical debates over these values are not the same as they were in the past. Although centuries of philosophical controversy and institutional experimentation have settled some issues, others have been raised, with some surprising twists. Constitutional democracies rest on the principle that all citizens are to be treated as free and equal persons under the law. The principle is the settled starting point for all reasonable debate about freedom of speech and religion, and it entails that the law must secure for each citizen an equal and extensive scheme of basic liberties, including the liberties of speech and religion.

1. Introduction

Since the birth of liberal democratic ideals in the seventeenth century, there has been a dramatic expansion in the range of expressive activities generally regarded as instances of the exercise of free speech. Until the twentieth century, it would have been unthinkable even to strong proponents of free speech that advocating the forcible overthrow of the government was properly considered an exercise of such freedom. Today, the prevailing view is that subversive advocacy is an exercise of free speech and should be legally protected.

Similarly, freedom of religion has expanded substantially over time. Until the twentieth century, Jews were routinely denied equal political and civil rights, even in the USA. They could not hold office in North Carolina or vote in New Hampshire until after the Civil War. Today such religious discrimination is unthinkable.

2. The Status of Basic Liberties

To describe the freedoms of speech and religion as basic liberties is to accord them a special status among the various forms of human activity. Basic liberties are understood to be those whose infringement by government or official action requires an especially strong justification (Scanlon 1972 ; Cohen 1996 ).

Many philosophers construe this requirement to mean that such infringements cannot be justified simply on grounds of social utility. Restrictions on basic liberties are not simply another cost to be weighed in the overall utility calculus. This idea fits comfortably with theories that posit, at the level of fundamental principle, rights-based constraints on the pursuit of social utility. Nagel explains that violating liberty of expression and conscience ‘is not a function of the balance of costs and benefits… while in some cases a right may be justifiably overridden by a sufficiently high threshold of costs, below that threshold its status as a right is insensitive to differences in the cost-benefit balance of respecting it in each particular case’ (1995: 84–5).

However, utilitarians need not abandon the idea of basic liberties. They will reject any theory in which the idea of rights plays a role at the level of fundamental principle but can accept the notion that there are certain types of liberty that government must have unusually strong reasons for restricting. Utilitarians might argue, for example, that some liberties are unusually productive of social utility. Or it might be claimed that government cannot be fully trusted in its utility judgements when it comes to certain liberties, so that there should be especially strong reasons before government is permitted to restrict such liberties. Mill's arguments ( 1859 /1978) can be construed as providing utilitarian reasons for demarcating basic liberties such as freedom of speech and conscience from those he regards as non-basic, such as freedom of trade.

3. Free Speech: Theoretical Issues

3.1 levels of protection.

The term ‘speech’ has come to stand for all forms of symbolic expression. For example, burning a national flag in protest over a government policy or wearing a Nazi uni- form to display support for that ideology are regarded as speech. Several current debates focus on whether certain forms of symbolic expression, such as pornography and hate speech, should receive less than full protection or even no protection at all.

Schauer (1982) usefully distinguished questions of whether a form of expression is covered by the free speech principle from questions of the degree of protection a form of speech is to receive. It is widely agreed, for example, that commercial speech is covered, but many scholars argue that it should not receive the same level of protection as the advocacy of political doctrines or as artistic expression.

Schauer's distinction can be elaborated in numerous ways. For example, Sunstein has argued for a two-tier approach in which the upper tier consists of expression that is ‘both intended and received as a contribution to public deliberation about some issue’ (1993:134). Such expression is to receive the strongest protection and is subject to regulation ‘only on the gravest showing of harm’ (1993:123–4). Lower-tier speech involves forms of expression that are not part of the process of public deliberation, such as advertising or pornography that involves children or violence against women, and its regulation would be subject to a less rigorous standard.

Sunstein's theory is a version of an approach developed in the mid-twentieth century by Meiklejohn, who argued that ‘the principle of the freedom of speech springs from the necessities of the program of self-government’ (1948: 26). Meiklejohn claimed that legal doctrine in the USA at the time was inadequately protective of speech. But critics of Sunstein's approach doubt that it is sufficiently protective of non-political forms of speech, such as works of art that are not politically intended and interpreted (Weinstein 1999 : 178).

Nonetheless, Sunstein is probably right that some way of distinguishing among forms of expression and levels of protection is needed if we are to give a cogent account of why it is legitimate for government to regulate speech reasonably regarded as calling for restriction, such as child pornography and false advertising. To extend the most stringent protection to every form of expression that counted as speech would be to tip the balance too far in favour of free speech and against the efforts of government to carry out its legitimate functions.

3.2 Speech and Conduct

The distinction between speech and conduct has also been prominent in efforts to specify a reasonable balance between the expressive liberty of the individual and the authority of government. In the past, for example, it was sometimes argued that workers who walked on picket lines or civil-rights protestors who marched in the streets were engaged in conduct and not speech. In 1971, several justices on the US Supreme Court opined that wearing in public a jacket bearing the words ‘Fuck the Draft’ amounted mainly to conduct rather than speech (Cohen v. California , 1971).

Those justices’ views are not tenable, but it has proved notoriously difficult to specify the distinction between speech and conduct. Some scholars have given up on the distinction entirely. Fish claims that ‘there is no class of utterances separable from the world of conduct’ (1994:114). Others have argued that the distinction does not track any ordinary understanding of what ‘speech’ is and that it must be construed in terms of the normative theory that best explains why communicative expression should receive special protection in the first place (Greenawalt: 1995 a). Still others have argued that a theory of communicative expression can draw the distinction without invoking normative claims about why such expression should be regarded as a basic liberty: what should count as speech is a task for linguistic theory rather than political philosophy (Tiersma 1993 ).

If it makes sense to regard freedom of speech as a basic liberty, then there must be some justifiable speech/non-speech distinction. Without a non-arbitrary distinction, it would be impossible adequately to defend why the liberty one calls ‘free speech’ should count as basic. The logical consequence would be, as Fish ( 1994 ) puts it, that ‘there's no such thing asfreespeech'—that is, no domain of expressive activity that can be impartially demarcated and that merits heightened protection.

3.3 Free Speech Scepticism

Even granting a speech/non-speech distinction, Fish is sceptical of regarding free speech as a basic liberty. He contends that the term ‘free speech’ is ‘just the name we give to verbal behavior that serves the substantive agendas we wish to advance…. Free speech … is not an independent value but a political prize’ (1994:102). Because the rhetoric of liberal democracy accords high status to expression that gets to wear the label of'free speech', the label is an object of political struggle. Accordingly, Fish counsels that, if'so-called free-speech principles have been fashioned by your enemy… contest their relevance to the issue at hand; but if you manage to refashion them in line with your purposes, urge them with a vengeance’ (1994:114).

Fish's deflationary account of free speech erases the distinction between the values ('agendas') we happen to hold and the values we ought to hold. Once that distinction is erased, all discussion and dialogue become a matter of strategic action: what counts is successfully outmanoeuvering the opponent ('your enemy') to achieve a fixed goal, not discovering which answers can be supported by the strongest reasons. But Fish does not consistently adhere to this view. He criticizes the idea that free speech is an absolute right, arguing that it blocks dialogue about issues such as hate-speech regulation, and he suggests ways in which dialogue can proceed once the blockage is removed. Fish recommends that we consider ‘each situation as it emerges’ and regard any question about speech regulation as a ‘local one’ about the risks and gains of a particular proposal (1994:111).

Such suggestions may be plausible, but they presuppose that his situational approach would yield those answers to speech issues that could be supported with the strongest reasons. Moreover, Fish begs the question of whether speech should be regarded as a basic liberty. A case-by-case approach rejects any special status for free speech, but the issue is whether there are good reasons for according speech that status. And a long line of thinkers have argued plausibly that a case-by-case method is inadequately protective of speech (Meiklejohn 1948 ; Frantz 1962 ; Ely 1980 ). Thus, Ely notes in connection with the suppression of Communism during the 1950s that majority opinion and official judgement tend to exaggerate the potential dangers posed by incidents of unpopular speech: ‘The First Amendment simply cannot stand on the shifting foundation of ad hoc evaluations of specific threat’ (Ely 1980 : 107). Ely may be wrong, but Fish fails to engage the issue with him.

Alexander and Horton express another form of scepticism, which questions the coherence of efforts to justify the status of speech as a basic liberty. They point out that such justifications necessarily appeal to general principles that (a) apply to activities that go beyond speech and (b) do not apply to some forms of speech. For example, they claim that Mill's argument that free speech facilitates the discovery of truth is vulnerable because some speech ‘contributes little toward answering … questions [and] some activities other than speech contribute a great deal’ (Alexander and Horton 1983 : 1350). More generally, the justifications for free speech do not fit the idea that speech is special and distinctive from other activities.

Alexander and Horton are right that justifications for expressive liberty will bottom out on normative principles that do not refer specifically to speech but instead involve values that are more general in scope. Yet, expression may be on some short- list of activities that such principles entail should generally be treated as basic. Thus, expression may be special, even if fundamental principles do not explicitly single it out for special treatment.

An older form of scepticism, associated with Marcuse ( 1969 ), claims that class divisions and corporate domination under capitalism make the marketplace of ideas a tool through which the powerful dominate expression and perpetuate their economic and social power. A system of expressive liberty that is ‘neutral’ among competing views is in fact repressive because background inequalities stifle the voices and manipulate the thinking of the oppressed. Marcuse argued that the existing political and economic structure ‘rigs the rules of the game’ and places at a disadvantage ‘those who stand against the established system’ (1969: 92). He favoured a structure that deliberately promoted the interests of the oppressed, even to the point of censoring views antagonistic to those interests. Only after the subversion of class society by a mass egalitarian movement would a truly neutral system of free expression be possible.

Elements of Marcuse's scepticism live on today in the work of critical race theorists and radical feminists, which will be examined below. His scepticism is also reflected in the current claim that corporate power poses a threat to expressive liberty that is as serious, if not more so, than the traditional threat of government. Some argue that the means of mass communication are so concentrated in the hands of a few corporate entities that free speech for the average person is virtually non- existent. (Kairys 1998 ). Herman and Chomsky have argued that ‘money and power are able to filter the news fit to print, marginalize dissent, and allow government and dominant private interests to get their message across to the public’ (1988: 2).

Scholarly attention to the issue of corporate domination of the means of communication is likely to increase in the coming years, as globalization and the Internet alter the ways in which people communicate. Debates will focus on whether the new technologies decentralize the power of communication or further concentrate it in the hands of transnational corporations. And those who see the latter tendency at work will argue for institutional mechanisms to confine it and to build a freer marketplace of ideas.

3.4 Arguments for Free Speech as a Basic Liberty

Among the arguments for according special status to expressive freedom is that speech is less harmful than other forms of behaviour. Speech can ‘hurt’ but not really ‘harm’. But Schauer casts doubt on the ‘lesser harm hypothesis’ (1993: 640). The subjective distress caused by speech can be as intense and long-lasting as that caused by many types of conduct. And the classification of speech-induced distress as mere ‘hurt’ involves dubious and question-begging normative judgements about the disvalue of such distress. Cohen seems right to argue, ‘Denying the cost of speech is simply insulting to those who pay it’ (1996:181).

Another line of argument revolves around the claim that government is properly subjected to great suspicion whenever it seeks to restrict expression. In this view, government has strong, self-serving motives to limit expression, especially the speech of dissenters and those with unpopular views and attitudes. In particular, government will tend to exaggerate whatever harms the expression of critics or dissenters may risk causing. Treating expressive liberty as basic acts as a prophylactic to help ensure that when government restricts expression it is not simply furthering its own interests but acting for good and legitimate reasons.

This argument from distrust contains some element of truth and plays a role in current debates over pornography, hate speech, and campaign finance reform. But standing alone the argument is incomplete. Government always has a tendency to act from self-serving motives. We need some account of what makes expression, in contrast to action in general, entitled to the status of a basic liberty. Such an account would need to explain why freedom of speech is especially valuable. One way to complete the argument is to connect expressive liberty to the discovery of truth.

Prominent among the traditional arguments for the special value of free expression is the idea that the ‘free marketplace of ideas’ facilitates the discovery and understanding of truth, especially new truths that run against the prevailing wisdom of the day (Mill: 1859 /1978).

Some contemporary thinkers argue that existing democracies do not have a truly free marketplace of ideas, because of oppression based on gender, race, and class (Matsuda 1993 ). But others respond that expressive liberty has historically proved crucial for emancipatory movements and that a system of free expression is vital for exposing and eliminating the oppression that remains (Richards 1999 ).

This debate is sometimes cast as one between advocates of wholly different political systems, but few thinkers defend censorship. The disputes are more like debates about whether the economic market for certain goods is malfunctioning and needs specific corrections than like debates about whether to eliminate the market system and replace it with state socialism. All sides can agree with Mill's claim that a system of free expression facilitates the discovery of truth, while disagreeing over whether the current system needs a ‘market correction’ when it comes to racist or pornographic speech. Still, one must wonder about the consistency of a view that claims systemic oppression, on the one hand, and then argues for reformist market corrections, on the other. Some may suggest that the only consistent radical position is one that, like Marcuse's, advocates a form of censorship.

In the current literature, perhaps the most common argument for free speech emphasizes its connection to individual autonomy. The right of free expression derives conceptually from the ‘moral sovereignty’ of the individual (Richards 1999 : 50). That sovereignty requires society to respect the conscientiously expressed views of its citizens. Dworkin ( 1996 ) takes a similar approach in arguing that freedom of speech is valuable because it is a necessary element of any society that treats its citizens as responsible moral agents who have the capacity to make up their own minds about what is good or bad, true or false.

But the autonomy arguments also threaten to undo the distinction between basic and non-basic liberties. To the extent that any activity may be an exercise of autonomy, no particular form of liberty can be accorded special status strictly on the basis of autonomy. Accordingly, the idea of autonomy must be appropriately limited or the autonomy-based arguments must be modified, if the basic/non-basic distinction is to be maintained.

Rawls argues for the special status of freedom of expression, as well as freedom of conscience and other basic liberties, by linking them to what he describes as a ‘liberal’ conception of the person. On his conception, persons have two fundamental moral powers that constitute them as free and equal: the capacity for a sense of justice and the capacity to formulate, pursue, and revise a conception of the good. For Rawls, special protections for the basic liberties ‘are essential social conditions for the adequate development and exercise of the two powers of moral personality over a complete life’ (1993: 293). It is not liberty as such but only certain forms of liberty that have the appropriate connection to the two moral powers. Accordingly, his view can be seen as a modified version of the autonomy-based approach. It is examined in greater detail in the sections below on religion.

Raz emphasizes an important autonomy-interest served by free expression for individuals with unconventional lifestyles, such as homosexuals and bisexuals. ‘The public portrayal and expression of forms of life validate the styles of life portrayed and … censoring expression normally expresses authoritative condemnation’ (Raz 1994 : 10). Thus expressive liberty helps promote the public recognition and acceptance of modes of life that lie outside the mainstream.

Another argument for free expression emphasizes its connection to democracy (Ely 1980 ). It holds that the special status offreespeech derives principally from the fact that it is indispensable for the kind of collective deliberation and decision making that is central to democratic self-government. Fiss presents an aggressive version of this approach in his interpretation of the US Constitution: ‘The autonomy protected by the First Amendment and rightly enjoyed by individuals and the press is not an end in itself, as it might be in some moral code, but is a means to further the democratic values underlying the Bill of Rights’ (Fiss 1996 : 83). Thus, for Fiss, expressive liberty is essential for the full and robust public debate that is called for by the ideal of collective self-government by the people. In other forms of the democracy-based argument, the role of free expression in curtailing government corruption and abuse is prominent.

Sunstein develops a nuanced version of the democracy-based approach, agreeing that individual autonomy is an important intrinsic value served by free expression but arguing that the dominant justification for treating free speech as a basic liberty stems from its role in the collective deliberations of democratic self- government. He writes that ‘the free speech principle should be seen through the lens of democracy’ (Sunstein 1993 : 252).

A pluralist approach would argue that many of the preceding arguments play some role in justifying the special status of free speech. Any one argument, in isolation, may be vulnerable to criticism, but in combination they provide strong reasons for treating speech as a basic liberty. Moreover, some of the values invoked by the arguments can be mutually reinforcing. Thus, Post has pointed out that democracy requires ‘a public discourse… keptfreefor the autonomous participation of individual citizens’ (1995: 7).

Still, the internal conflicts found in a pluralist approach should not be discounted. Post emphasizes the ‘serious internal tension’ between individual autonomy and collective self-government (1995: 7). Monistic theories can avoid such tensions, but, in doing so, they may simply be ignoring the untidy reality of moral life.

4. Free Speech: Applications

4.1 pornography, morality, and harm.

One of the central issues of recent years has been whether the legal regulation of adult pornography is justifiable. Some thinkers advocate regulation on the basis of the moral principles of natural law. Thus, George contends that pornography tends 'to corrupt and deprave’ by harming ‘people's capacity properly to channel sexual desire’ (1999: 189). George's conception of natural law reflects that developed by Finnis ( 1997 ), according to which sexual acts are morally wrong if they fail to con- tribute to the inherent good of heterosexual, monogamous marriage. But many thinkers reject the view of sexuality that informs the natural law position, and the argument that pornography should be regulated because it promotes immorality is not central to the current debate.

Instead, the debate has revolved around the issue whether pornography subverts gender equality. The arguments have been shaped by the feminist insight that much pornography is not simply about sexual pleasure but also about the subordination of women as a vehicle for that pleasure.

Advocates of the legal regulation of pornography typically argue that it causally contributes to sexual assaults against women and makes men indifferent to the sexual aggressions other men may commit. Such harm, they contend, is more than sufficient to justify the regulation of pornographic expression. But there is deep division among scholars on whether, and to what degree, the causal claims connecting pornography to sexual aggression are warranted by the empirical evidence, and there is little prospect of any consensus on the matter. Indeed, there is a notable lack of agreement over what degree and type of evidence would be sufficient to sustain—or rebut—the claims. Opponents of regulation will typically insist on controlled studies using the quantitative techniques of mainstream social science. Accordingly, a leading critic of regulation, Dworkin, contends that ‘no significant scientific study has concluded that pornography is a significant cause of crime’ (1996: 230).

On the other side, advocates of regulation often charge that a much broader array of evidence should be considered than is typically examined by mainstream social science. Delgado and Stefancic claim that ‘researchers fail to take account of certain types of evidence that, if counted, would tend to corroborate feminist claims’. They would include in the evidence correlations between pornography consumption and conduct considered socially ‘normal’, such as ‘aggressive flirting’ and ‘conspicuous leering’ (Delgado and Stefancic 1997 : 34). Others would expand the evidence to include the personal accounts of sexually violent men who consume pornography and women who are their victims.

Insistence on controlled studies sets the bar unreasonably high, but sole reliance on personal accounts seems insufficient. Rapists may claim that they were provoked to act by their consumption of pornography, but they have self-interested reasons for making such claims. Moreover, the psychological causes of a person's sexual impulses are hardly transparent, even—perhaps especially—to the individual himself. And Delgado and Stefancic are simply speculating when they suggest the existence of significant correlations between pornography consumption and such behaviours as ‘aggressive flirting’ and between those behaviours and sexual assaults. Moreover, even if there were agreement that pornography did causally contribute to sexual aggression against women, there would be debate over the extent and normative implications of the marginal increase in sexual assaults caused by pornography.

4.2 Pornography and Equality

Aside from their complicated empirical aspects, disputes over the regulation of pornography involve competing conceptions of gender equality. MacKinnon argues that protecting pornography under the umbrella of free speech amounts to a failure to take gender equality seriously. The serious harm done to women by degrading sexual images is discounted by arguments that pornography merits the same protection as political or artistic expression.

Dworkin ( 1996 : 237–8) argues that MacKinnon has misconstrued the idea of equality.

Because the moral environment in which we all live is in good part created by others … the question of who shall have the power to help shape that environment, and how, is of fundamental importance Only one answer is consistent with the ideals of political equality: that no one may be preventedfrominfluencing the shared moral environment through his own private choices, tastes, opinions, and example, just because these tastes or opinions dis- gust those who have the power to shut him up or lock him up.

Dworkin's argument would be more convincing if we lived in a world in which there were no systemic oppression or exclusion on the basis of such factors as gender or race. But in a non-ideal world, where the combined effect of the ‘private choices, tastes, opinions, and examples’ of many people is to put others at a severe, systemic and unjust disadvantage, it is hardly clear that equality prohibits some measure of official regulation in how those tastes and opinions are expressed. Such regulation is defended not ‘just because’ the tastes or opinions are disgusting. It is defended on the claim that the tastes and opinions contribute to systemic inequality.

Dworkin counters that such an approach would justify the regulation of television commercials, movies, and the popular media generally, which contribute to women's subordinate status. In fact, he may well be right that popular media contribute much more to that status than does pornography. His views reflect Feinberg's claim (1985) that pornography is primarily a symptom, not a cause, of violence and discrimination against women: the cause is a deeply entrenched system of'macho’ cultural values. And policing the popular media in order to eliminate gender inequality would mean a gender-totalitarian state. But it does not follow that it is wrong to regulate any form of expression that contributes to women's sub- ordination. Relatively narrow regulations that do no significant damage to the free communication of ideas and attitudes should not be ruled out of court on a priori grounds. Sunstein ( 1993 ) and Cohen ( 1996 ), for example, reasonably argue that the regulation of violent pornography should be considered permissible because it is ‘low-value’ expression that may cause gender-based injury.

4.3 Pornography as Subordination

Recently, some feminist advocates of the regulation of pornography have developed a new line of argument, contending that the production and consumption of pornography are forms of discriminatory conduct that subordinate and silence women and, as conduct, should not receive free speech protection. MacKinnon (i993) pioneered this line of argument, but Langton ( 1993 ) has developed it using the ideas of speech-act theory.

To regard pornographic depictions as acts of subordination may appear to conflate a depiction with the object it depicts. Moreover, some philosophers contend that the idea that pornography silences women is a strained metaphor for a con- testable causal claim about the social effects of pornography on women's willingness to voice their views. But Langton seeks to vindicate the plausibility of MacKinnnon's claims about subordination and silencing. Langton concedes that depictions as such cannot subordinate, but she contends that they can be used to rank certain people as inferior and legitimize discriminatory treatment against them. Such uses amount to the ‘illocutionary force’ of pornography, as Langton sees it, borrowing a concept from Austin ( 1962 ). And she suggests that there is evidence that pornographic depictions are used in our society authoritatively to rank women as subordinates and rationalize the treatment accordingly. Moreover, Langton argues that it is plausible to think that pornography is used to disable women from successfully performing certain speech-acts. For example, a woman's refusal to have sex does not count as a refusal. Her utterance of'No’ is not taken to mean ‘No’: there is no ‘uptake’, and so she is effectively silenced, even if nothing is preventing her from vocalizing certain words. The woman cannot do with those words what she is intending to do—namely, to refuse sex.

Jacobson criticizes Langton by arguing that, if women were disabled from per- forming the illocutionary act of refusing sex, then we could not describe as ‘rape’ the act of a man who ignores a women's ‘No’ and proceeds to have sex with her. Jacobson also argues that whether a woman performs the speech-act of refusal does not depend on the idiosyncratic understanding of any particular man but rather on how a ‘competent auditor’—woman or man—would understand her utterance (1995: 78). Pornography does not silence women in the way Langton suggests, Jacobson argues, because competent auditors understand that women can and do use their words to refuse sex.

Moreover, it is questionable whether consumers regard pornographic depictions as authoritative pronouncements declaring that women ought to be sexual subordinates. Sadurski argues, ‘Recognition of the pornographer's special “authority” … does not seem to be a plausible description of the attitude held by pornography's consumers toward its producers’ (1999:132). Pornography is consumed for purposes of sexual arousal, not for receiving authoritative verdicts on the proper sexual role of women.

4.4 Hate Speech in the USA

During the 1980s, a vigorous debate began over the legitimacy of regulating speech that degrades or demeans persons on the basis of such features as race, gender, and sexual orientation. In the USA, hundreds of colleges enacted speech codes that sought to restrict such speech. Many of the codes were challenged in court as inconsistent with the free speech guarantees of the Constitution and criticized by many scholars (Shiell 1998 ). But the codes were supported by other scholars, including those associated with Critical Race Theory, a movement that highlights the continued existence of racial oppression and the need for more aggressive legal and political strategies in combating it. (Lawrence 1993 ). Campus speech codes were also defended by some liberal scholars, who argued that narrowly drawn codes directed at face-to-face racist vilification were consistent with free speech principles (Grey 1991 ; Sunstein 1993 ; Greenawalt 1995 a).

Some scholars went beyond the endorsement of campus speech codes. Delgado argued for extending tort law to cover the wrong of racial insult. And Shiffrin ( 1999 : 161) contends that certain forms of racist speech should be punishable by law.

There are many parallels between the arguments for regulating hate speech and those for regulating pornography. Both sets of arguments stress the continued existence of subordination. Both point to the importance of symbolic expression in creating and perpetuating subordination. Both contend that our culture generally discounts and dismisses the harms suffered by subordinate classes. And both make their case for regulation on the basis of a principle of equal citizenship.

Yet, courts have struck down as violating free speech rights every campus speech code that has been subject to legal challenge. The decisions came from state and lower federal courts. The US Supreme Court has not ruled directly on the constitutional validity of campus codes, but in RAV v. StPaul (1992) the court did set out legal principles that would appear to condemn virtually all the codes that schools have adopted.

RAV invalidated a city ordinance that prohibited the public display of any symbol or sign ‘that arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender’ (RAV v. StPaul 1992: 379) The ordinance was interpreted as applying only to ‘fighting words', a form of expression unprotected under US law. Such words are traditionally defined as utterances that by themselves inflict injury or tend to incite immediate violence, although courts tend to read such a definition in a very narrow way.

In RAV the defendant was convicted under the ordinance after burning a cross on the lawn of a black family living in a white neighbourhood. The court threw out the conviction, without rejecting traditional fighting words doctrine. It held that the ordinance impermissibly selected certain categories of fighting words. Such selection reflected a particular viewpoint—namely, that certain kinds of fighting words are worse than others. The court ruled that such an approach amounts to impermissible viewpoint bias. Writing for the court, Justice Scalia argued that, when expression is regulated on the basis of viewpoint, it raises ‘the specter that the Government may effectively drive certain ideas or viewpoints from the market- place’ (RAV v. St Paul 1992: 387).

Shiffrin points out that one of the implications of the ruling in RAV is that it licenses a more sweeping regulation of expression than the ordinance that was struck down. The implication is that the city could enact a ‘pure’ fighting words ban that did not specify any particular category of such words. Such a ban would still cover the racist and sexist fighting words that the ordinance sought to prohibit and so ‘would drive the very same ideas and viewpoints (along with others) from the marketplace’ (Shiffrin 1999 : 63).

But Shiffrin misses the central point in Scalia's analysis: the ordinance was an effort by the city to place an official stigma on certain viewpoints and attitudes. Selecting out certain classes of fighting words for prohibition was essential to the stigmatizing purpose of the law. A ‘pure’ fighting words ban would have under- mined that purpose. And, for Scalia, the use of criminal law to stigmatize certain viewpoints violates expressive liberty.

4.5 Hate Speech in Canada

Constitutional law in the USA is unique among contemporary democracies in the degree of protection that it provides hate speech. In Canada there is a statute making it a crime to communicate in public a statement that wilfully promotes the hatred of some racial, religious, or ethnic group, and virtually every other constitutional democracy apart from the USA has similar statutes. Such laws would be invalidated as viewpoint based by courts in the USA.

In R. v Keegstra (1990) the Canadian Supreme Court accepted the claim that the nation's racial hatred statute infringed on freedom of expression, a right protected under the Canadian Charter. But it held that expressive liberty must be balanced against racial equality and that the statute represented a reasonable balancing of those two values.

Sumner defends the court's view, arguing that tolerating expression that aims at fomenting racial hatred ‘would inevitably be to confer upon it a certain degree of legitimacy. This is something that no society can afford to do, if it wishes to safe- guard the status of minorities as equal citizens’ (1994:172–3). But in a regime of free expression it is essential to distinguish between tolerating a message and conferring legitimacy upon it. Official toleration is a stance in which society extends neither its authoritative approval nor its disapproval of a message. The Canadian hate-speech ban might be justified, but not because the failure to ban hate speech legitimizes racism. Rather, the ban would be justified only because it plays an important role in securing equal citizenship for all.

4.6 Enforcing Speech Restrictions

Some critics of hate-speech laws point to the fact that they are rarely enforced and that, when they are, racial minorities are often the ones prosecuted (Magnet 1994 : 238–9). Moreover, the anonymous and borderless nature of Internet communication will make the enforcement of rules against hate speech (and pornography) increasingly difficult. The difficulties are highlighted by a case in which a French judge ordered Yahoo's auction site to prevent web-users in France from gaining access to Nazi artefacts (Kaplan 2000 ). He ruled that French law prohibited dis- playing Nazi souvenirs for sale. But many critics doubted the feasibility of implementing the ruling.

It may be that, in the age of Internet communication, many laws against hate speech and pornography will turn out to be largely symbolic expressions of a nation's commitment to racial and gender equality. Enforcement maybe uneven and difficult. Yet, the simple fact that the law has authoritatively stigmatized certain views may well have a formative influence on social attitudes. As Kahan argues, laws help to ‘furnish cues about how individuals should conduct themselves to gain approval and to avoid the stigma of deviance’ (1999:487). Hate-speech laws may send a strong signal to society affirming equality and stigmatizing bigotry. The possibility of such a signal should give pause to those who see the underenforcement of hate-speech laws as sufficient grounds for rejecting them. But the same possibility also raises concerns over whether the laws are an unjustifiable departure from viewpoint neutrality. Again, free speech principles and egalitarian ones appear in some measure to conflict.

4.7 Campaign Finance Regulation

To protect against the corruption of the political process, a number of constitutional democracies have imposed legal limits on the expenditures of candidates and/or parties. Such countries include Britain, India, Israel, and Japan. In Britain, for example, expenditure limits on candidates have been in force since 1883 and operate in conjunction with a law prohibiting anyone from spending on a candidate's behalf without his specific authorization (Law Library 1991 : 6, 72).

In the USA, though, the Supreme Court ruled in Buckley v. Valeo (1976) that expenditure restrictions violate free speech. When candidates and parties spend money on a campaign, they are expressing their political views. When government restricts the amount of money that can be spent on a campaign, it limits political speech, the kind that merits the fullest protection. And the court said that it was not a legitimate exercise of government power to restrict the speech of some in order to equalize the amount of speech across society. At the same time, the court ruled that contributions to campaigns may be legally restricted in order to prevent corruption and the appearance of corruption.

Most commentators argue that the court's distinction between contributions and expenditures is not viable. If spending money to run a campaign is a way of expressing political views, so is contributing money to a campaign. Money is contributed so that it will be spent. Greenawalt—an advocate of expenditure limits—expresses the consensus: ‘The right to spend money to disseminate ideas is a significant aspect of freedom’ (1995a: 141).

Two of the central arguments in favour of expenditure limits invoke the idea of equality. The first holds that every citizen has an equal right to participate in the political process on a fair basis. Such participation includes voting, publicly expressing one's opinions, and running for public office. The one-person/one-vote rule is generally accepted—certain exceptions aside—and scholars such as Sunstein argue that ‘limits on campaign expenditures are continuous with that rule’ (1994:1392). Unlimited campaign expenditures in combination with the high cost of running a campaign mean that a candidate needs either to be independently wealthy or to rely heavily on wealthy individuals or organizations to mount a viable run for office. Such a situation violates the equal right of political participation.

The second argument contends that democracy should provide for the equal representation of the interests of all citizens. Some interests will lose in the democratic process, for example, because they are not sufficiently compelling or are outvoted by the majority. But in the democratic process all interests should matter and be weighed, in accordance with some reasonable measure of urgency or importance. The problem with unlimited expenditures is that they result in a system that skews the weighing process in favour of the interests of the wealthy. Christiano contends that campaign financing in the USA has created a society ‘in which the wealthy and powerful private economic institutions … dominate the process of discussion’. Such a society'simply cannot live up to the egalitarian ideals of democracy’ (1996: 286–7).

A third argument for expenditure limits connects them to democracy in another way. It holds that unlimited money in politics undermines the cognitive conditions necessary for a democratic public to make well-considered political judgements. Fiss makes this argument when he refers to ‘the distorting effect that unlimited political expenditures have on politics’ and asserts that ‘what democracy exalts is not simply public choice but rather public choice made with full information and under suitable conditions of reflection’ (1996: 25, 23).

Critics of expenditure limits claim that such limits face a series of dilemmas. If the limits apply only to the expenditures of candidates, then money will flow into political parties, which will use it to influence elections. If the limits are extended to par- ties, then money will flow to independent organizations such as environmental, pro-choice, and anti-abortion groups, who will use it to influence elections. Even if limits on candidates and parties were acceptable, critics argue, limits on independent groups would clearly violate free speech. In short, limits that are consistent with free speech would be ineffective at stemming the influence of money on politics, and limits that might have some effectiveness would violate free speech rights.

Sullivan argues that the dilemma is only intensified because ‘campaign finance reform will do nothing to cure… the disproportionate influence on elections… of the owners and management of the institutional press'. More generally, because of large economic inequalities in society, ‘background wealth distortions cannot be prevented without trenching much further upon widely held First Amendment values than most reformers … are willing to go’ (1998:1086).

Sullivan does not deny that money can harm the political process. But she argues that under a system of unlimited contributions and expenditures, combined with mandatory and immediate disclosure of donors and amounts, there would be ‘reasons for modest optimism that the harm the reformers fear from unlimited political money would in fact be limited’ (1997: 689).

However, once it is assumed that the cost of campaigns creates conditions in which candidates are forced to rely unduly on the wealthy, it is difficult to see how disclosure requirements by themselves are going to limit the harm. The problem is not that we do not know exactly who is giving large sums to candidates and parties. The problem is that any viable candidate for public office will need to rely on such individuals or be independently wealthy himself. Disclosure requirements would not provide what is needed: alternative candidates free of the undue influence of large wealth.

Kaminer contends that the dilemmas generated by expenditure limits argue for public subsidies to ‘candidates who do not have personal fortunes or major party support’. The system would create a ‘financial floor, but not a ceiling, for candidates’ (Kaminer 2000 : 38). Critics will respond that it should be up to each individual to decide whether and how much to support a candidate. Public subsidies force all tax- payers to support candidates, even those against whom they may want to vote. This argument has been successful in stopping Britain from adopting a system of subsidies (Law Library 2000 : 73). However, the argument fails to consider that in a democracy political activity such as running for office is a public good: the activity helps to sustain a system whose benefits extend to all and cannot be limited to those who ‘pay’ for them through their political engagement. In such a system, the relatively minor incursion on the liberty of taxpayers is more than offset by the good of maintaining a working democracy.

But the subsidy option, regarded as an alternative to expenditure limits on candidates, supporters, and parties, does face some practical difficulties. The value of any given amount of money in a campaign is relative to the amount spent by one's opponent and her supporters. In the absence of expenditure limits, it is difficult to see how any realistic version of a subsidy programme would, by itself, significantly restrain the influence of money. Presidential elections illustrate the point: despite the fact that the law provides presidential candidates with generous subsidies, expenditures by national parties have had an enormous influence on presidential politics.

In 1843, Marx wrote that there was a fundamental conflict in capitalist societies between the political principle of equal citizenship and the economic principle that individuals have a right to the unlimited accumulation of wealth. And Marx was right that economic inequality could subvert political equality. But the conflict can be mitigated, short of instituting socialism. Expenditure limits and public subsidies are among the devices that can be used in combination to promote political equality.

5. Religious Liberty: Theoretical Issues

5.1 what is religion.

Scholars of religion are sometimes sceptical of efforts to define ‘religion’. But even some sceptics could agree that the term can be reasonably understood as essentially referring to rituals, beliefs, and ways of life oriented towards a realm of existence or experience regarded as radically different from the realm of ordinary life and as carrying ultimate normative authority (King 1987 : 283). This type of radical otherness is sometimes described as the sacred, and contrasted with the secular or profane.

While religions cannot be reduced to propositional attitudes, they often incorporate what Rawls ( 1993 ) calls ‘comprehensive doctrines’—that is, normative and metaphysical ideas about the meaning and value of human life. These doctrines are the grounds on which people orient their conduct, containing conceptions and principles that are taken to have normative authority over the full scope of human life. When the conceptions involve a sacred/secular contrast and vest supreme authority in the sacred, the doctrines are religious. When comprehensive doctrines vest supreme normative authority in a realm that is not conceived as sacred, they are secular.

Greenawalt objects to essentialist definitions of'religion’ on the grounds that they are too restrictive and vulnerable to a bias that favours familiar religions over unfamiliar ones. He contends that we should fix the reference of the term by beginning with the features of paradigmatic religions and then seeing ‘how closely disputed beliefs and practices resemble clear instances’. He insists that ‘no single feature is indispensable for religion’ (Greenawalt 2000 : 219).

Greenawalt ( 2000 : 207) is right to warn that defining ‘religion’ carries the danger that the familiar will be favoured over the unfamiliar, and his analogical approach seeks to accommodate the many different forms that religion can assume. But the requirement of an orientation towards the sacred leaves room for an abundance of varieties of religion. Moreover, Greenawalt's analogical approach carries the very danger he seeks to avoid: if we begin with paradigm cases and then look for other instances that are close enough to those cases, the extension we ultimately attribute to ‘religion’ may well be skewed by the fact that our starting point consists of those religions that are familiar to us. This skewing is especially likely when there are no articulated standards specifying the respects in which disputed cases must be judged similar to the paradigmatic ones.

Such bias may well be reflected in the statement of a German official that Scientology was ‘a multinational combine rather than a religion’ (US State Department 2000). For that official, the extensive business operations of Scientology may have made it too different from his paradigmatic religions. In contrast, ‘orientationto-the-sacred’ clearly counts Scientology as a religion, notwithstanding its business ventures.

If religion is to be understood in terms of paradigm cases plus whatever is sufficiently similar to those cases, then it would be better to enumerate the respects in terms of which similarity is to be judged. Thus, Alston takes the paradigm approach but also lists nine characteristic features of religion, such as belief in supernatural beings, the sacred/profane distinction, prayer and other rituals, and a life-organizing world view (1964: 88). To be a religion requires possessing some unspecified number of such features.

Greenawalt would probably be sympathetic to Alston's approach, as it is consis- tent with an important practical concern of his. Greenawalt thinks that the law should not define religion in terms of an orientation towards the sacred because it would omit groups such as Ethical Culture societies, which are organized around secular comprehensive doctrines. In his view, Ethical Culture merits equal legal protection with doctrines that invoke the sacred. But the US Constitution explicitly protects religious liberty, not freedom of conscience more broadly. So constitutional protection for Ethical Culture seems to require that it be a religion.

But, instead of stretching the idea of religion in order to gain protection for secular comprehensive doctrines, one could argue that the normative principles justifying protection for religion also justify protection for freedom of conscience more broadly. And one could contend that a constitution should be construed in terms of its underlying normative principles. Such an argument could gain protection for secular doctrines, but it would also cast doubt on the idea that there is, as a matter of fundamental political principle, something special about religion. That doubt is explored in the next section.

5.2 Arguments for Religious Liberty as Basic

Let us suppose that religion involves an inner orientation towards the sacred and its outward expression in speech, rituals, and forms of life. And let us grant that the freedoms of conscience, speech, and association are basic. Because such freedoms do not distinguish the religious from the secular, we can then ask, ‘Is religious liberty no more than a particular instance of the general freedoms of conscience, speech, and association?’ Or is religious liberty an independent basic liberty?

The traditional arguments for religious freedom lend credibility to the idea that it is not an independent basic liberty. One prominent argument is that we should be especially distrustful of government when it comes to regulations that infringe on religious activity. Government has a tendency to attribute without good grounds malignant secular effects to the practices of unpopular and minority religions, or to exaggerate relatively trivial effects. Protecting religious liberty as basic guards against such ungrounded and biased judgements.

Such an argument parallels the one for regarding free speech as basic but does not establish any difference in principle between religious and non-religious expression. Government tends to attribute malignant effects to any system or association that it regards as a threat to its power or its view of the social good, regardless of religious or secular character of the threat. Whether religious ‘threats’ are perceived as more dangerous is an empirical question to be answered with respect to a particular social-historical context. And in modern times unpopular secular doctrines have also been subject to unwarranted claims of dangerousness.

Another traditional argument for treating religious liberty as basic asserts that leaving government free to restrict religion tends to foment civil strife. Failure to protect religious liberty raises the stakes in politics, and the struggle among the different sects will intensify as they vie for state power. This argument traces back to Locke: ‘it is not the diversity of opinions, (which cannot be avoided) but the refusal of toleration to those that are of different opinion… that has produced all the bustles and wars’ (1689/1983: 55).

Nonetheless, the argument does not establish any basis for religious liberty that is independent of arguments for secular freedom of expression and association. Secular strife is also a danger when government can suppress secular views and organizations. Moreover, the question whether religion is the most important threat to civil peace is empirical, to be addressed by each society and its particular circumstances (Smith 1991 ; Schwarzchild 1993 ).

Yet another argument stresses the importance of religion in promoting the civic virtues essential to a liberal democratic order (Galston 1991 ). But this argument elides the fact that religions take myriad forms, only some of which promote democratic virtue. Resting arguments for religious liberty on empirical claims that cannot be generalized to all religions is an unpromising strategy for establishing that religion merits greater protection than non-religion, as a matter of fundamental principle.

In the current literature, perhaps the central argument for religious liberty links it to individual autonomy. This should not be surprising, since the main argument for free speech is also autonomy based. Richards emphasizes the common root of expressive and religious liberty in the ‘inalienable right to conscience, i.e., sincere convictions about matters of fact and value’ (1999: 23). But this argument clearly erases the distinction between religious and secular conduct. Sincere convictions that form the basis of action can be about the sacred or about the secular.

Nevertheless, it remains possible that religious motivations have normatively important features that they share with some, but not all, secular motivations. Rawls's work suggests that actions motivated by a person's comprehensive doctrine—religious or secular—merit heightened protection because of the connection the actions have to the full development and exercise of the two moral powers of personhood: the capacity for a sense of justice and the ability to formulate, pursue, and revise a conception of the good (1993). Those powers are exercised, not whenever one acts on any given belief he happens to hold, but only when the belief is an element of the individual's ultimate normative orientation towards life. The term ‘liberty of conscience’ is appropriate in this regard, as a person's conscience is reasonably conceived as her most central normative conceptions.

Sandel criticizes the Rawlsian conception of personhood on the ground that it ‘depreciates the claims of those for whom religion is not an expression of autonomy but a matter of conviction unrelated to choice'. For many religious believers, their faith is not a matter of autonomous choice but rather reflects a categorical duty that they see as ‘indispensable to their identity’ (Sandel 1996 : 67). But Sandel misses the mark. The claims of those who understand their faith as essential to their identity are given no less weight than the claims of those who see their faith as the object of an autonomous choice. The Rawlsian conception is that, however an individual understands her faith, her right to express that faith is a basic liberty. It is up to the individual to say what is, or is not, essential to her identity. That liberal right is no less important when the individual declares, ‘Here I stand. I can do no other.’

Freedom of religion is rightly considered to be a basic liberty, but there is nothing special about religion at the level of fundamental political principle. Rather, religious liberty is basic because religion instantiates more general aspects of human life and activity that merit such protection: speech, association, and conscience.

6. Religious Liberty: Applications

6.1 the accommodation debates.

In 1972 the US Supreme Court held that Amish parents had afree-exerciseright to withdraw their children from public school before the statutory minimum age of 16 (Wisconsin v. Yoder , 1972). Yet today there is much disagreement whether the exemption is illegitimate because it denies Amish females the opportunity to gain the knowledge needed to make an informed choice about remaining part of a patriarchal culture. In 1989, after considerable controversy, the French government exempted Muslim girls from the school dress code to allow them to wear their religion's traditional headscarf, the chador. Yet, disagreement over the wearing of the headscarf in school continues today in much of Western Europe (Seiple 2000 : 10). In 1990, the US Supreme Court ﹛Employment Division v. Smith , 1990) rejected the claim of members of the Native American church that they had a constitutional right to engage in their religion's ritual smoking of peyote. In response, Congress enacted a new law better to protect religious groups, and the Supreme Court in turn invalidated that law (Boerne v. Flores , 1997).

These cases all involve debates over ‘religious accommodation'—that is, claims to an exemption, based on one's religion, from an otherwise valid, general law. Many scholars contend that, in a broad range of circumstances, religious liberty requires government to provide accommodations when some general law or policy comes into conflict with a religiously motivated activity.

Advocates of extensive religious accommodations often look for reasons to show why religion is especially important and should be accorded privileged status. One prominent line of argument contends that religions provide grounds for resisting unjust and tyrannical states by recognizing a normative authority superior to secular authority (Carter 1993 : 134; McConnell 2000 : 1250). However, as with other arguments we have canvassed, this one fails to distinguish religious from secular comprehensive doctrines.

A distinct line of argument for accommodation rests not on the contention that religion is special but rather on the idea that accommodation is necessary to secure equal citizenship for religious persons (McConnell 1992 ). Thus, Galeotti argues that equal respect requires French officials to accommodate the Muslim schoolgirls. She contends that the case involved ‘the quest for public recognition’ by a religious minority and that such recognition is a ‘fundamental demand of equality’ (Galeotti 1993 : 597)- This interest in public recognition is similar to the one Raz emphasized in arguing that free speech is important to those with unconventional lifestyles.

On the anti-accommodationist side, Marshall argues that religion-based exemptions give religious individuals special treatment and so violate equal citizenship. Thus, he objects to the disparity of exempting the Amish from compulsory school attendance laws on account of their beliefs but denying a similar exemption to ‘a group of Thoreauians whose objection would be based on social or political grounds’ (Marshall 1991 : 316). And if religious liberty is taken as derivative of more general basic liberties, Marshall's Thoreauians should be treated in the same manner as the Amish: either both groups or neither should be given exemptions.

Nonetheless, there appears to be a serious dilemma with the idea that religious and secular doctrines should be treated identically when it comes to accommodation. Prohibiting all accommodation would seem to violate equal citizenship. Equality is not the same as uniformity and cannot be guaranteed by uniformity of treatment (Audi 2000 : 40). Sometimes a person's deepest normative convictions make his situation relevantly different, as with the Native American peyote smokers or those whose Sabbath observance prevents them from taking a job that unemployment or welfare laws would otherwise require them to take. But, if religious and secular doctrines are treated on a par, then it seems that the result would ‘make a mockery of the rule of law’ (Nussbaum 1999 : 111). Too many claims of accommodation might need to be granted, as both religious and secular groups press for exemptions. Thus, Nussbaum contends that, as a practical matter, we must choose between providing exemptions only to religiously motivated conduct or having no exemptions at all. And she argues for the former on the basis of the traditional vulnerability of minority religions.

But Nussbaum is not entirely convincing. Religious minorities have been historically vulnerable, even in constitutional democracies, but so have secular minorities, such as Communists. Moreover, constitutionally required religious accommodations have not been extensive, restricted mainly to matters of schooling and unemployment compensation. Extending equal protection to secular doctrines would threaten the rule of law only if much more extensive religious accommodations were recognized.

Moreover, legal rulings have counted certain secular doctrines—such as Ethical Culture and secular forms of pacifism—as equivalent to religion, as Greenawalt endorses (2000:208–9). Although this judicial stretching of'religion’ involves a legal fiction, legal thinkers could still reasonably contend that heightened protection for religious and secular comprehensive doctrines is important for promoting the moral powers of personhood.

Today, many constitutions differ from the US Constitution in explicitly protecting freedom of conscience and not simply religious liberty. Indeed, Article 4 of the German Constitution exempts from armed war service all conscientious objectors, drawing no distinction between secular and religious objections. And it is reasonable to think that a feasible arrangement exists that treats religious and secular doctrines equally, while providing both kinds of doctrine with heightened protection and avoiding harm to the rule of law.

6.2 Religion and Politics

Related to the accommodation debates is the question whether theological claims can play a legitimate role in public political discussion and decision making. Several key thinkers argue that theological claims are, in certain respects, inappropriate for public debate and decision. These thinkers do not contend that individuals should be legally barred from making religious contributions to public debate. But they argue that persons should exercise self-restraint when it comes to such contributions so as to respect the equal standing of their fellow citizens. Thus, Audi argues that citizens should not support any coercive law unless they are motivated by ‘adequate secular reasons’, such as public health and safety (2000: 86–96).

Rawls ( 1993 ) contends that norms of equal citizenship require each person to bracket her belief in the truth of her own comprehensive doctrine when discussing and deciding constitutional questions and issues of basic justice. Equal citizens address such matters on grounds of public reason—that is, grounds that they can reasonably expect all their fellow citizens reasonably to endorse in principle. Rawls treats religious and secular comprehensive doctrines on a par and provides for an important exception to the bracketing requirement: comprehensive doctrines may be introduced when they help to bring about or secure free and equal citizenship for all and the arguments based on those doctrines are supplemented ‘in due course’ by ones that are not particular to any sectarian world view (1999:152–5).

Greenawalt argues that ‘comprehensive views… can appropriately figure in resolution of the broad range of political issues that ordinary citizens face’, with the proviso that when citizens argue in the public forum for a political position they should emphasize reasons that their fellow citizens can share. Legislators may give some weight to positions of their constituents that are based on comprehensive views. But, because legislators should represent all their constituents with equal respect, they ‘should probably afford more weight to a citizen position that is grounded in public reason’ (Greenawalt 1995b: 160–1). Judges should exercise the greatest restraint and generally decide cases based on reasons that are ‘shared in our political culture’ (Greenawalt 1995 b: 146).

Perry ( 1997 ) rejects restrictions on religious arguments in public discussion and argues that the idea of the sacred value of life is an admissible ground of official decision making apart from any secular rationale. However, he otherwise deems it inappropriate for officials to make decisions about human well-being on religious grounds when there is no plausible secular basis for the decision.

Wolterstorff contends that liberal views such as those of Audi, Rawls, and Greenawalt have led to an unfortunate ‘silencing of religion in the public square’ and fail to treat religious citizens as equals (1997:177). Quinn adds that the public airing of religious considerations has the virtue of encouraging a public dialogue in which unexpected agreement emerges and people develop their own views more adequately as a result of ‘contact and confrontation with an alien religion or meta- physics’ (1997: 158). Likewise, Carter contends that public dialogue in which religious argument is welcomed could help persons to learn from others with different epistemological suppositions (1993: 232).

In assessing this complex debate, it is crucial to understand the liberal conception of equal citizenship and to ask whether the anti-liberals provide a viable alternative. When citizens call on government to deploy its coercive powers, the liberal norm of equal citizenship places on them an obligation to provide a justification resting on grounds that their fellow citizens can in principle accept. For example, reasons of public health are ones that all citizens can accept, notwithstanding the diversity of religious and secular comprehensive doctrines. Moreover, citizens generally accept the methods of empirical inquiry that are capable of providing reliable evidence about claims concerning public health. Thus, disagreement over whether a particular law is needed adequately to protect public health is one that proceeds from a broad area of common ground, and thereby conforms to the norms of liberal equality.

In contrast, reasons of personal salvation are not ones that all citizens can accept, in part because the faith of many believers holds that salvation is not among the matters that government can competently or legitimately address. And citizens of faith will disagree sharply over the appropriate methods of determining the right road to salvation. Reasons involving secular ideals of personal moral perfection— for example, the Stoic ideal of an individual indifferent to his fortune or misfortune— will also fail the test of liberal equality. Many citizens will be unable to accept them because they hold conflicting ideals of moral perfection.

Liberal equality does not obligate anyone to refrain from giving voice to their comprehensive views in political discussion. Nor does liberal equality obligate anyone to refrain from supporting a coercive law if they have sufficient sectarian reasons. But, if they do have such reasons, liberal equality obligates them to refrain from supporting the law for those reasons: they should not support the law unless they also have reasons that their fellow citizens can share.

The liberal conception of equal citizenship is an ideal. Reasons and methods of enquiry that can be shared by literally every single citizen will be impossible to find. But, for the liberal, that is a matter of a regrettable gap between the ideal and the real. If anti-liberals do not regard it as such, they need to develop a viable alternative to the liberal conception of equality. And, if they do regard it as such, they need to explain why they do not turn out to be liberals after all.

7. Speech, Religion, And Equality

Discussions of freedom of speech and religion often assume the existence of a democratic order devoid of explosive ethnic tensions and oppressive social hierarchies. That assumption is challenged in part by critical race theorists and radical feminists, who assert that Western democracies are riddled with racial and gender oppression. But, regardless of the truth of that assertion, it is undeniable that there are democracies riddled by oppressive hierarchies and violent ethnic conflicts. And it is important to examine how the principles of expressive and religious liberty should be applied under conditions that fall egregiously short of the ideal of free and equal citizenship.

In his examination of India, Jacobsohn argues that caste inequality and religious violence make it reasonable to restrict religious association and speech there in ways that would be unacceptable in other constitutional democracies. Indian electoral law prohibits candidates from promoting ‘feelings of enmity or hatred between classes of citizens… on grounds of religion, race, caste, community or language’ (Jacobsohn 2000 : 297). The Indian Constitution protects free speech and religion, but the Supreme Court has held that a leader of an extremist Hindu party could be barred from standing for election because of campaign rhetoric directed against Muslims. The court invoked a constitutional provision providing a ‘public order’ exception to free speech protections.

Jacobsohn endorses the court's view but goes further to contend that it has not been vigorous enough in enforcing another provision of Indian electoral law that prohibits any candidate from appealing for votes on the basis of his race, religion, or caste. Indian constitutionalism, argues Jacobsohn, is committed to the elimination of the culture's traditional structural inequalities, and the electoral provision has a logic that can be defended on grounds of its consistency with such constitutionalism. More broadly, his point is that the principles essential to constitutional democracy—such as freedom of speech and religion—should be interpreted and applied in a manner that is sensitive to the social and historical context of each country.

Tamir ( 2000 ) takes a similar tack in discussing Israel, where the law prohibits a party for standing for election if it intentionally incites racism. She defends a ruling of the Israeli High Court barring the virulently anti-Islamic Kach Party, even though the speech in question involved readings from biblical passages. On her view, religious hate speech in the Israeli context amounts to fighting words that ought to be banned on account of the potential to ignite violence.

The realities of caste in India and Jewish/Palestinian conflict in Israel make issues of expressive and religious liberty harder cases than they typically are in democracies where the gap between the real and the ideal is not nearly as wide. Interpreting such liberties in ways that would entrench caste inequality or generate widespread religious violence would be a mistake on practical and moral grounds. Religious and expressive liberty are elements of the ideal of free and equal citizenship, and social progress towards that ideal, where the reality falls egregiously short, should not be undercut by the context-blind insistence that rights are trumps over collective goals.

Nonetheless, the incursion on basic liberties found in Israeli and Indian electoral law are substantial, because the laws deny to certain groups the right of political association based on their religious speech. This incursion is far greater than that of the hate-speech laws found in Canada and most other democracies. Thus, laws that ban extremist religious parties should face a high burden of justification, requiring clear and convincing evidence that the laws are needed to make progress in mitigating caste-like inequality or to forestall widespread violence. Neither Jacobsohn nor Tamir makes the case that such evidence is available.

8. Conclusion

For much of the twentieth century, thinkers developed and invoked the ideals of freedom and equality to combat social disadvantage linked to race, gender, and class. But the meaning and implications of the ideals are not transparent, and debates have emerged as to whether they require society to tolerate forms of expression that demean and degrade on the basis of race, religion, and gender. Moreover, theorists have recently taken up issues concerning the equal treatment of persons whose religious convictions have political implications.

The task of future work lies in three main areas. First, in the area of ideal theory, there is need to clarify the scope and nature of expressive and religious liberty through further examination of the ideal of free and equal citizenship. Second, in the area of non-ideal theory, there is need for sociologically informed work that examines how the political ideals of freedom and equality should guide law and policy under the real conditions of social life. Third, there is need for comparative analyses, exploring the various forms that constitutional democracy takes in different coun- tries and how that variety illuminates questions of ideal and non-ideal theory.

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DEPARTMENT OF PHILOSOPHY

Fall 2024 class schedule.

Courses are subject to change. Check Caesar for the most up-to-date list of the current quarter.

Fall 2024 course descriptions

Phil 101-7-20: college seminar: philosophy of sex, gender, and sexuality.

To borrow a phrase from Aristotle: sex is said in many ways. The word "sex" can refer to the domain of the erotic, that is, to sexual desire and sexual activity. It can also refer to certain biological categories related to an animal's reproductive role, such as female, male, or intersex. Among humans, "sex," along with the nearby term "gender," can also refer to cultural or social categories like woman, man, or nonbinary. And there is also "sex" in the sense of sexual orientation, a set of categories describing an individual’s typical pattern of sexual attraction, such as lesbian, gay, straight, or bisexual. Needless to say, things get complicated pretty quickly. <paragraph break> In this seminar, we will read and discuss recent philosophical attempts to make sense of all this. The course will cover a wide range of topics, including: What is sexual desire? What (if anything) is sexual perversion? What is the best account of concepts like gender identity or sexual orientation? How (if at all) do those concepts relate to biological sex? What about the ethics and politics of sex? Is there anything wrong, morally speaking, with casual sex, or with the buying and selling of sex? Readings for this course will be drawn mostly from contemporary philosophical sources.

PHIL 101-7-21: College Seminar: The self is a hodgepodge, and so is this course

Every aspect of inquiry can be part of discovering oneself. The goal of this class is loosely to help students discover who they are as students. We'll read some philosophy about what makes individuals people the individuals they are. We'll read some other literary essays loosely connected to the topic, to varying degrees. And we'll read some poetry from W.H.Auden, sometimes out loud.

PHIL 101-7-22: College Seminar: What is Democracy?

In this seminar we will examine some of the fundamental ideas and questions behind democracy and provide a reading of their "inventors". Some of the questions are: What is democracy? Is it a form of government, a value, an ideal, a political system, a form of life, a bit of all this? Is democracy always the best political solution (in wartime? general starvation?)? Why should the whole of the people decide and not the specialists in the respective questions? Are all democratically taken decisions automatically legitimate (what about minorities\' rights?)? How should all citizens in a democracy participate in politics? By direct self-government of the people or by voting representatives? Is everything democratically decidable or does the individual have unalterable rights? Is tolerance and/or free speech necessary for democracy and how far can it go?

PHIL 101-7-23: College Seminar:

Phil 110: introduction to philosophy.

In this course we will be exploring several traditional topics within philosophy, including free will, the nature of morality and justice, and existential issues pertaining to the meaning of life and the significance of death.  Students will be expected (i) to comprehend the various philosophers’ arguments on these topics, (ii) to develop their own views on the topics, and (iii) to present their own views, as well as the views of the philosophers we read, in clear, succinct, and forcefully argued thesis papers.  Special attention will be paid to questions concerning disagreements over values.

PHIL 150: Introduction to Logic

This course acquaints students with both the power and limitations of formal deductive logic. We want true premises to lead to true conclusions---that is, we want the truth of the conclusions to follow from the truth of the premises. When this happens, we say that the premises entail the conclusions. Logic examines this “follows from”, or entailment, relation, and how to represent sentences in an idealized way that captures (at least some) of that relationship. Logic makes subtle mistakes easier to spot—and this is useful in philosophy where arguments can be quite intricate! The first step is learning how to represent sentences in natural language in a symbolic language, which allows for step-by-step reconstruction of natural language arguments. The second step is determining whether the argument, so represented, has features that mark it as an entailment. When it does, conclusions follow from premises! When it doesn't---either the conclusions don’t follow, or we need to refine our formal representation of the argument. The course begins by examining truth-functional logic: a system for treating arguments involving “and”, “or”, “not”, and “if…then” constructions. We'll then show how this logic is inadequate, but how its main shortcomings are met by first-order logic, which also accommodates arguments involving quantifier words like “all”, “none”, and “some”.

PHIL 210-1: History of Philosophy: Ancient

How can we make our lives and our communities better? Why should we act justly, when being unjust can be profitable? What makes someone a true friend, how many kinds of friendships are there, and how many friends should we aim to have? These kinds of questions preoccupied ancient Greek philosophers, and their contributions to these topics continue to influence contemporary thought. We will investigate different proposed answers to these and other questions with a view to better understanding ancient Greek ethics, metaphysics, and epistemology. This course strongly emphasizes the development of close reading and writing skills. No prior exposure to ancient philosophy is required.

PHIL 221: Gender, Politics, and Philosophy

This course is an introduction to philosophical problems concerning gender and politics. What is gender and what is its relation to sex and sexuality? What is gender injustice and why is it wrong? What are the causes of gender injustice and how could we overcome it? And what is the relation of feminist theory to lived experience and to political action? We will read and critically discuss both historical and contemporary texts addressing these questions.

PHIL 222: Introduction to Africana Philosophy

Philosopher Lucious Outlaw understands Africana philosophy as a “gathering notion used to cover collectively particular articulations, and traditions of particular articulations, of persons African and African-descended that are to be regarded as instances of philosophizing.” Broadly, Africana philosophy considers work from diverse areas in Africa, the Caribbean, and North America. Central questions discussed herein include very common philosophical questions such as: “What does it mean to be a human being?”; “how do we account for the past (or time, more generally)?”; and “how is knowledge about ourselves—as thinking subjects—possible?” However, what makes these questions unique to Africana philosophy is their being asked in light of Western modernity, colonialism, and slavery by or about African-descended people. This is so since, as Louis Gordon tells us, “there was no reason for the people of the African continent to have considered themselves as Africans until that identity was imposed upon them through conquest and colonization.” So the question: “What does it mean to be a human being?” is raised in light of the humanity of African descended peoples that was called into question beginning with Western modernity, colonialism, and slavery. This course introduces students to philosophical work done by African and African descended people on a plethora of issues, many of which are intersecting. In so doing, it highlights the impact of racialized and racist conditions, historical and present social and political structures, and linguistic and cultural formations of African-descended groups throughout the world. 

PHIL 225: Minds and Machines

This course will take up a number of philosophical questions about generative artificial intelligence. Are generative AI models agents? Do they pose unique existential risks to humans? What does the surge in AI-generated content mean for art, social media, and politics? We will explore these questions through readings from philosophers, computer scientists, and others in the cognitive and social sciences.

PHIL 259: Introduction Philosophy of Language

This is an introduction to the philosophy of language taught through academic texts from philosophy and the cognitive sciences as well as selections of short fiction. Some questions we will ask include: What is meaning? Can we ever really communicate with one another and, if so, how? How do we acquire a language? How do the languages that we learn shape our minds and the ways that we live? Do non-human animals use language? And how does figurative language work?

PHIL 259: Introduction to Metaphysics

Metaphysics concerns the structure of reality. It asks questions like: Do entities like electrons and minds exist in the same way as a tree or a water bottle? What distinguishes kinds like H2O and lions from kinds like ‘animals at the Lincoln Park Zoo’? Are race and gender real and in what way? Are groups like the Supreme Court more than a collection of their members? How should we understand claims about possibilities, such as ‘If kangaroos did not have tails, they would fall over’? And how do social structures (that is, social practices, social roles, institutions) cause social outcomes? In this course, we will cover philosophical views on ontology (what exists), fundamental levels of reality, the composition of social groups, natural and social kinds, the nature of race and gender, possibility and necessity, and social structural causation. There will be particular emphasis on social aspects of reality.

PHIL 262: Ethical Problems/Public Issues

This course is a study of ethical problems arising in public policy, as well as philosophical approaches to addressing these problems. In this course we will think within, and critically examine, contemporary philosophical theories of morality such as utilitarianism, contractualism, virtue ethics, and care ethics. We will examine these moral theories through the lens of disputed moral issues such as punishment, immigration, racial integration, climate change, and freedom of speech, paying special attention to these issues as they figure in the contemporary social and political landscape of the United States. We will explore historical and contemporary structures of inequality in the US, particularly related to race, gender, and class, and we will critically reflect on our own positions within these structures.

PHIL 273-1: The Brady Scholars Program: The Moral Life

What does morality require of us? Does acting morally amount to consistently bringing about the best consequences that we can? Or are there other important considerations that we should take into account when thinking about how to act well? When we are trying to figure out how to act, what questions should we be asking ourselves? Drawing on both classic and contemporary readings in philosophy, as well as our own experiences, we will ask what it means to live a moral life in different spheres and situations. Do we have, or can we justify, special obligations to our friends and family? Do our professional and other roles shape what we have reason to do? How do we understand our obligations towards strangers? Is there some unified way to understand the reasons that should guide us in all of these spheres, or do they operate independently?

PHIL 312: Studies in Modern Philosophy: Belief and Doubt

This course will consider the ways in which philosophers have understood the life of the mind to unfold, from belief and doubt an individual may experience to disagreement and the need for toleration in a community.

PHIL 314: Studies in German Philosophy: Marx

This course is a reading-intensive seminar on the social and philosophical thought of Karl Marx. We will study Marx's earlier and later writings, as well as relevant background material from Marx's Hegelian predecessors (including Hegel himself) and the eighteenth- and nineteenth-century political economists.

PHIL 315: Introduction to French Philosophy

The course begins with a foundational competency in main concepts from the French philosopher Michel Foucault, including discipline and biopower, the productivity and plurality of power; normalization and its dependence on "abnormality;" the conditions under which freedom is also a form of subjection; disciplinary and punitive societies, the historical a priori. We review many of the aspects of Foucault's work  that have strongly impacted inquiry in the arts, humanities, and social sciences. Turning, in the course’s second section,  to the  work of French Martinian philosopher and decolonial theorist Frantz Fanon, we will critically compare Foucault’s and Fanon’s approaches to power, psychiatric medicine, families, biopolitics, self-surveillance, knowledge, selfhood, alterity, and colonization. Challenging both thinkers we will ask how these approaches both reinforce each other and, at times,  call each other into question. Students will have the opportunity to write on each of the two French philosophers jointly or separately.

The course is reading intensive. It will include weekly contributions to class debate including online postings.  your critical responses to the readings,  and to  each other are encouraged. The course is open to both undergraduates and graduates and includes a lecture component and separate discussion sections at the undergraduate and graduate level.

PHIL 327: Philosophy of Psychology

What is the nature of short-term memory or implicit bias? Are our moral judgments impacted by emotional states? How do we know that tests like the n-back task, implicit association test, or fMRI studies produce evidence about memory, implicit attitudes, or emotional states? Psychologists appeal to tools of scientific reasoning, such as validation, construct development, and operational definitions, to evaluate when methods provide evidence about the objects of inquiry. We will analyze these tools as well as typical methods employed in psychology and cognitive neuroscience. These methods include: introspection, comparative animal research, controlled lab experiments, and functional neuroimaging. Using this analysis as background, we will evaluate particular cases of scientific reasoning about animal cognition, implicit bias, short-term and spatial memory, and moral judgment. At the end of this course, we will evaluate the role of replication and integration of results in producing knowledge about the mind/brain.

PHIL 361: Topics in Social & Political Philosophy: Philosophy of Punishment and Incarceration

The United States is currently home to 5% of the world's population but 25% of its incarcerated population. With close to 2 million people under the control of the American criminal legal system, the United States has more total people who are incarcerated than any other country in the world. Moreover, the United States has one of the most punitive approaches to criminal justice, imposing lengthy prison sentences, forcing people who are incarcerated to spend years—sometimes even decades—in solitary confinement, and providing very few educational, vocational, and recreational programs in prisons. Punishment and incarceration also disproportionately impact people of color. Black Americans are incarcerated at more than 5 times the rate of whites. While Black Americans and Hispanics make up about 32% of the US population, they constitute 56% of the incarcerated population. This course will use a philosophical lens to examine the causes and consequences of this crisis of mass incarceration in the United States, along with possible solutions to it, with a particular emphasis on the theories of punishment grounding our criminal legal system and, thus, our prisons. The course will include students from the Evanston campus and incarcerated students in the Northwestern Prison Education Program. *Note: This course will take place inside Sheridan Correctional Center in Sheridan, IL. On class days, students will leave Evanston at 8 AM and will return by 3:30 PM. Enrollment is limited to 10 students from Evanston, is by permission only, and requires an application. In no more than 500 words each, please respond to the following two questions: What do you think you would contribute to a class of this kind? What do you think you would gain from a class of this kind? Please submit responses to Professor Jennifer Lackey at [email protected] by May 31, 2024. Admissions decisions will be made by June 10th.

PHIL 373-1: The Civically Engaged Life: The Good Work

Brady Scholars in their senior year will meet frequently throughout the quarter to move ahead with the collaborative project they have chosen as their service to the Evanston community.

PHIL 390: Special Topics in Philosophy

Very broadly, feminism is both a political movement and a theoretical commitment to ending gender-based oppression. Feminists have contributed important work to every area of philosophy, posing distinctive questions and developing distinctive critiques, views, and concepts. In this course we will learn about feminist contributions to various “core” areas of philosophy such as metaphysics, epistemology, ethics, and social philosophy. Issues we may consider include: ‘what is gender?’ (metaphysics), ‘how does gender impact our standing as knowers’ (epistemology), ‘how do and how should gender norms operate in our moral theories?’ (ethics), ‘what are sexism and misogyny, and how can we counteract them?’ (social philosophy). We’ll also think about the commitments, assumptions, and aims shared by feminists across philosophy and what it is that connects this work across philosophy.

PHIL 414: Seminar in German Philosophy

This course is a reading-intensive seminar on the social and philosophical thought of Karl Marx. We will study Marx’s earlier and later writings, as well as relevant background material from Marx’s Hegelian predecessors (including Hegel himself) and the eighteenth- and nineteenth-century political economists.

PHIL 422: Studies in Modern Philosophy: Spinoza

We will examine Spinoza's views in a variety of areas, including metaphysics, epistemology, philosophy of mind and language, ethics, and political philosophy.

PHIL 423: Seminar in Contemporary Philosophy: Alain Locke

Most commonly studied for his work in the Harlem Renaissance, Alain Locke developed a critical pragmatism that was a response to William James’ pragmatism and developed a cosmopolitan theory that led him to democratic, race, value, art, education, and religious theories.  This seminar will examine each of these areas of Locke's philosophical work, showing how they connect to each other.   

PHIL 468: Seminar in Epistemology

Phil 402-1: second-year proseminar.

Opinion | Ending campus protests protects free speech

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Reactions to footage of police marching in riot gear to break up the encampments and detain students and professors have been sharp. Even critics of the protesters’ agenda — and most of what we’ve heard the protesters say is repugnant — have decried the arrests as violations of free speech. Some defenders of the police actions concede the point: to them the need to quell campus protesters just shows that free speech rights are “not absolute.”

Wrong. It’s precisely because all rights, including the right to free speech, are absolutes that many of these protests are justifiably shut down by the police.

The right to free speech protects everyone’s ability to express ideas — even the most vicious of ideas — to anyone who chooses to listen . It protects this expression against anyone who would forcibly interfere, whether a government bent on censoring a book praising Marx and Mao, or a racist mob that destroys the printing presses of a newspaper speaking up for justice. We each need to be able to express and listen to ideas of our choosing — even false ideas — if we are to rationally search for the truth.

The First Amendment prohibits government from enacting laws that violate anyone’s freedom of speech. It imposes no restrictions or obligations on private individuals or organizations, such as Columbia University.

Students choose a university like Columbia to get an education from its professors, not to be subjected to political harangues from other students. To advance its educational mission, Columbia rightly needs to set rules about how its property is used and which viewpoints are taught on its premises. When a mob of students and non-students invades the Columbia campus, sets up an encampment on its quadrangle, creates a nuisance that interferes with the business of education, and even bars other students and professors from entering and attending classes, these protesters are interfering with the property and free speech rights of the university . Columbia didn’t have to wait for protesters to break into Hamilton Hall to justifiably have the police eject them.

Of course, a student paying good money to attend a private university like Columbia may object that the university is not enforcing its officially stated rules equally and unbiasedly, permitting some student protests that break the rules while disbanding others. Does anyone seriously think that if the Columbia protests were not pro-Hamas but pro-Confederacy, they would have been allowed to continue for this long? But that is a contractual complaint, to be settled ultimately in civil court. It is not a First Amendment issue.

State-run universities like UCLA and the University of Texas at Austin are crucially different: the Supreme Court has ruled that they are subject to the First Amendment. There is much to criticize in the Court’s interpretation here of the First Amendment, including its expansive views on which types of “public property” should be treated as a “public forum” for expression. But for now these decisions have the force of law.

When areas of a state-run campus like quads are deemed “designated public forums,” a state-run university cannot restrict the content or viewpoints expressed by protesters. It cannot even restrict who can protest: non-students may show up. In such forums, the university can set reasonable time, manner and place conditions on expression, consistent with its purpose of functioning as an educational institution. Protesters are not entitled to physically disrupt wider campus life, and should be swiftly arrested when they do so.

In the aftermath of the barbaric riot at UCLA among protesters and counter-protesters, part of what is rightly under investigation is why campus and local police did not intervene sooner. Likely this is the result of deferring to the expansive “public forum” doctrine, and points to what’s wrong with that doctrine and its roots. Opening a public space for protesters to express any viewpoint, and for counter-protesters to oppose them, creates an atmosphere that by its nature disrupts the educational function of a university.

By contrast, at UT Austin what is now in dispute is whether the protesters were violating reasonable time, manner and place restrictions, or were victims of a content-based restriction. UT Austin contends that the protesters were violating the former. Critics like the Foundation for Individual Rights and Expression (FIRE) argue that the protesters were not and that the university is in fact violating the First Amendment. FIRE cites as part of its argument an April 24 tweet from Texas Governor Abbott announcing arrests on the grounds that “Antisemitism will not be tolerated in Texas. Period.”

The right to free speech is not a value to be “balanced” against law and order. The only valid purpose of law and order is to protect the rights of citizens, including their rights to property and to free speech, which the government must treat as absolutes. When government itself violates these rights, as it may have at UT Austin, it should be rebuked.

But when it intervenes to protect these rights, as it did at Columbia and should have done sooner at UCLA and elsewhere, it deserves praise.

Onkar Ghate, Ph.D. in philosophy, is a senior fellow the Ayn Rand Institute, and a contributor to The First Amendment: Essays on the Imperative of Intellectual Freedom (forthcoming). Ben Bayer, Ph.D. in philosophy and formerly a professor, is a fellow and director of content at ARI.

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UChicago Says Free Speech Is Sacred. Some Students See Hypocrisy.

The university’s president sent in the police to dismantle encampments, which he said had disrupted campus life. Protesters say the school is being hypocritical.

Students constructed wood barriers around a pro-Palestinian encampment on the campus of the University of Chicago to protect it from a possible law enforcement forced removal. Credit...

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By Jeremy W. Peters

Photographs by Jamie Kelter Davis

Jeremy Peters reported this story from the campus of the University of Chicago.

• Published May 6, 2024 Updated May 7, 2024

The University of Chicago has built a brand around the idea that its students should be unafraid to encounter ideas or opinions they disagree with.

To drum that in, the school provides incoming students with copies of its 2015 free-speech declaration , known as the Chicago statement, which states that freedom of expression is an “essential element” of its culture.

And the university has long adhered to a policy of institutional neutrality, which strongly discourages divesting from companies for political reasons, or from making statements aligning it with a social cause. That neutrality, the university argues, allows for a robust, unencumbered exchange of ideas.

Many professors swell with pride talking about how the school’s commitment to these principles has endured through two world wars, Vietnam and, more recently, the tumult of the Trump administration. And more than 100 institutions have adopted or endorsed similar principles.

But the University of Chicago’s image as the citadel of free speech is being tested again — this time over an encampment on its central quad, where protesters of Israel’s war in Gaza defied orders to leave for more than a week.

On Tuesday morning, the university called in police to bring down dozens of tents.

When the encampment first went up last week, Paul Alivisatos, the university’s president, said the school wanted to show “the greatest leeway possible for free expression,” and allowed the tents to stay up, even though they were in defiance of a policy against erecting structures in public spaces.

But he also said that this leniency was not indefinite. He later said that the tents had to go, because the ongoing protests were disrupting student life and degrading civility on campus.

Student protesters viewed the demand as hypocritical.

“The university continuously batters this point about free speech,” said Youssef Hasweh, a fourth-year political science major, during a rally on the quad on Saturday.

He said that the college tells protesters, “‘We are giving you your First Amendment rights, and we’re one of the only universities to do that, so we’re the good guys.’”

As Mr. Hasweh sees it, the Chicago statement is a fig leaf. “They’re kind of just using that to shut us down.”

Across the country, encampments have forced administrators and students to grapple with the outer limits of free speech. The tents, protesters argue, are a form of speech. But to many universities, they violate rules about the use of physical space and campus disruption.

Should academic institutions ignore their own policies against disruptive activity for the sake of speech, even if many Jewish students feel their very identity is under attack? When does a protest dominate a campus enough to drown out opposing views? And what if encampments overwhelm student life, with drums and chants affecting the ability to study for finals?

Some schools , like Brown and Rutgers, have reached agreements with protesters that have lowered the temperature, at least enough for the tents to come down. Others, like Columbia, have been unable to reach a détente and called in the police.

But in some ways, the argument is as much about the culture of debate and disagreement as it is about free speech.

Geoffrey Stone, a law professor at the university, oversaw the Chicago statement, and said that some nuance has been lost.

While the First Amendment protects the right for people to “say things that scare other people,” Mr. Stone said, “what you want to tell students and citizens is: You should try not to do that. You should communicate your message in a civil and respectful manner.”

Tents, Music, Disruption

The quad at the University of Chicago pulsed all weekend with the din of protest. The encampment, a mini-village of more than 100 tents, was just a few steps away from the building that houses the president’s office.

At any given time, the area teemed with dozens of students, who seemed to be enjoying unseasonably warm spring weather. Bob Dylan blasted from loudspeakers. Chants that many Jews consider a call to wipe out the state of Israel — “Free, free Palestine” and “From the river to the sea, Palestine will be free” — rang out. Chalked slogans covered the sidewalks: “Staying invested is a political statement, not neutrality”; “Chinese Queer Feminists for Palestine.”

The Rev. Jesse Jackson even paid a visit.

Tension was evident, however, with some students wearing masks or kaffiyehs to cover their faces. Protesters held up blankets to prevent photographers from taking pictures. Some Jewish students walked through the quad on their way home from services, passing signs that read “Globalize the Intifada” and “Jews Say Ceasefire Now.”

Negotiations to take the encampment down, which the university once characterized as “substantive,” had persisted all weekend then broke down on Sunday.

Students insisted that they would stay on the quad until their demands were met, which spanned a range of issues that were both related to and tangential to the Palestinian cause. These included pulling out of investments that fund military operations in Israel; stating that a genocide and “scholasticide,” the destruction of Palestinian universities, are taking place in Gaza; disbanding the campus police; and ending construction of new buildings in the surrounding neighborhood as a way to stop gentrification.

Those appeared to be nonstarters with the administration, because of Chicago’s neutrality policy. It had resisted such pressure before. As other prominent universities heeded students’ demands in the 1980s to divest from companies that did business in South Africa, the University of Chicago was a notable exception.

But the university has also been inconsistent, said Mr. Hasweh, the student protester, pointing to its statement of support for those affected by the invasion of Ukraine.

For other protesters, Chicago’s vaunted free speech doctrine seems like a dusty relic, irrelevant to what is happening in the world, especially when it comes to the war in Gaza, which for them, amounts to genocide.

The speech principles are relatable to these students and faculty in “the way that the value statements of Procter & Gamble are related to the employees of Procter & Gamble,” said Anton Ford, an associate professor of philosophy who was at the encampment. “We didn’t vote on them. The students didn’t vote on them. Nobody asked us about our opinion on them.”

Callie Maidhof, who teaches global studies with a focus on the Israeli-Palestinian conflict, advised protesters as they negotiated with the administration. She said the university was “strategically using” its stance on neutrality as a way to clamp down on the protests.

“I hear people saying, ‘I like free speech, but this has gone too far,’” Dr. Maidhof said. “But where is the line when you’re talking about 40,000 people killed? What could be considered too far?”

A Last Warning

On Friday, four days after the encampment started, the university sent a statement to the campus.

“The encampment cannot continue,” Dr. Alivisatos, the president, wrote. “The encampment has created systematic disruption of campus. Protesters are monopolizing areas of the Main Quad at the expense of other members of our community. Clear violations of policies have only increased.”

The university accused demonstrators of engaging in the kind of activity that flies in the face of Chicago’s culture — including shouting down counter demonstrators and destroying an installation of Israeli flags. The student newspaper, The Chicago Maroon, reported that at one point, demonstrators used a projector to display a profane insult to Dr. Alivisatos on the main administration building.

“The encampment protesters have flouted our policies rather than working within them,” Dr. Alivisatos wrote, warning that the ongoing demonstration was jeopardizing the university’s ability to function.

On Tuesday, shortly before 5 a.m. local time, the university’s police arrived in riot helmets and began clearing tents, a humbling reminder that even an institution dedicated to nurturing a culture of civilized disagreement could not breach the considerable gap between its values and those of its protesting students and faculty. Nor could a culture of neutrality quell the outrage, which at other institutions has led to raucous demonstrations, occupations of buildings, graduation disruptions and arrests.

“If someone were to design a stress test to reveal all the of fault lines and unresolved issues in higher education among student activism, this is it,” said Jamie Kalven, a journalist who has extensively studied the University of Chicago’s history of free speech and protest.

Mr. Kalven’s father, Harry Kalven, chaired the committee that established the university’s position on political neutrality in 1967. The impasse today, the son said, reflects how many students — on Chicago’s ivy-draped campus and beyond — do not share the school’s values when it comes to political expression.

“It’s really remarkable the degree to which young people are alienated from what I think of as the First Amendment tradition,” he said.

The tension on Chicago’s campus was also a sign that today’s combative political climate has infected academia.

“The default setting is confrontation,” said Eboo Patel, president of Interfaith America, a Chicago-based nonprofit that promotes cooperation across religious faiths.

“What was the symbol of the Student Nonviolent Coordinating Committee?” Mr. Patel asked, referring to one of the most active civil rights groups of the 1960s. “It was two hands clasped together.”

And today, what is the symbol that many groups seeking social and political change use? Mr. Patel answered: “The fist.”

The ability to engage productively with people who share different political views is something that Olivia Gross, a fourth-year undergraduate, wishes young people would learn to do more naturally.

“I came here to hear views that are different than mine,” she said in an interview on Saturday. “That’s the point of coming to the University of Chicago. I want to know what you think and why you think it.”

But she said the current climate made that difficult sometimes. Students at the encampment, she noted, had set up tents for a variety of different purposes — for welcoming protesters, for medical needs and for food.

“How nice would it be,” she mused, “to have a tent that invited dialogue across differences?”

Bob Chiarito contributed reporting.

Because of an editing error, an earlier version of this article misstated the date of the Chicago statement on free speech. It was released in 2015, not 2014.

How we handle corrections

Jeremy W. Peters is a Times reporter who covers debates over free expression and how they impact higher education and other vital American institutions. More about Jeremy W. Peters

Our Coverage of the U.S. Campus Protests

News and Analysis

Penn:  The Philadelphia Police Department cleared an encampment of pro-Palestinian demonstrators  off the campus of the University of Pennsylvania, making arrests and bringing an end to a two-week standoff  between administrators and protesting students.

M.I.T.:  The police entered a pro-Palestinian encampment at the Massachusetts Institute of Technology and arrested about a dozen demonstrators , in what appeared to be an effort to clear the area after days of tensions.

Princeton:  The eruptions that have marked campus life have entered the hunger strike phase at Princeton University, where about a dozen students occupying a corner of Cannon Green were on the fifth day of a fast in solidarity  with the idea of Palestinian liberation.

A Brief Moment of Joy :  With fireworks, a marching band, celebrity congratulations and a drone show, the University of Southern California tried to smooth over the weeks of tumult that have cleaved its campus with a hastily assembled party for its graduates .

An Agreement to Divest :  Discontent over the war in Gaza had been building for months at Trinity College Dublin, but what had been a rumble suddenly became a roar . Here’s how pro-Palestinian students pushed  the school to divest.

Hillary Clinton’s Accusation :  In an interview on the MSNBC show “Morning Joe,” Clinton criticized student protesters , saying many were ignorant of the history of the Middle East, the United States and the world.

Republican Hypocrisy:  Prominent Republicans have seized on campus protests to assail what they say is antisemitism on the left. But for years they have mainstreamed anti-Jewish rhetoric .

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