FEINBERG ON MILL ON FREEDOM OF EXPRESSION

1. Mill's argument justifies only a certain class of protected expression: Opinions about matters of fact and about historical, scientific, theological, philosophical, political, and moral questions.

Arguments for freedom of expression for the class of protected expression:

(1) Revised Version of the Assumption of Infallibility Argument;

(2) Portion of the Truth/Free Market Of Ideas Argument;

(3) Rational Grounds (Cicero) argument.

2. Forms of expression that are not protected: (1) defamation (libel and slander) and "malicious truth"; (2) invasions of privacy (Why is there a separate standard for public figures?)

(3) causing panic;

(4) provoking retaliatory violence ("fighting words");

(5) incitement to crime or insurrection;

(6) sedition?--Feinberg advocates true "clear and present danger" test (not the test applied by the Supreme Court in Dennis).

SCANLON'S THEORY OF FREEDOM OF EXPRESSION

Key idea: It is a mistake to think there is an important distinction between speech as a category and action as a category. The important distinction is not between restrictions that are legitimate and those that are not, but between justifications for restrictions that are legitimate and those that are not.

Key distinction: "expression which moves others to act by pointing out what they take to be good reasons for action and expression which gives rise to action in other ways" [or produces harms in other ways]

Scanlon's theory applies to all kinds of expression. it is not limited to special categories of expression (e.g., political, scientific, artistic). What makes an act an act of expression?

SCANLON'S "MILLIAN" PRINCIPLE IS A PRINCIPLE THAT LIMITS THE PERMISSIBLE JUSTIFICATIONS FOR GOVERNMENT LIMITATION OF EXPRESSION:

It defines the harms that CANNOT be used to justify legal limitations on acts of expression:

(a) harms to certain individuals which consist in their coming to have false beliefs as a result of those acts of expression;

(b) harmful consequences of acts performed as a result of those acts of expression, where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing.

What kind of theory is Scanlon's: consequentialist or non-consequentialist?

Is it an argument for a "right of citizens to make up their own minds"?

It is a limitation on the legitimate authority of governments.

The mixed theory.

Permissible justifications for legal limitations on expression, on Scanlon's view:

(1) expression which produces direct physical injury or damage;

(2) expression which produces harmful or unpleasant states of mind;

(3) expression which causes others to form an adverse opinion, or defamation, or interference with right to fair trial;

(4) expression which causes panic;

(5) conspiracy to commit a crime;

(6) expression which provides means rather than reasons (the nerve gas example).

What about seditious expression in conditions of war or other grave emergency?

LATER SCANLON MODIFIES HIS VIEW TO ALLOW THAT THE CATEGORY OF SPEECH MATTERS: HE QUALIFIES HIS EARLIER ARGUMENTS TO APPLY ONLY TO EXPRESSION OF POLITICAL, RELIGIOUS, AND MORAL VIEWS.

SCANLON: THE EXCEPTION THAT SWALLOWS THE RULE

THE CONSENT EXCEPTION:

Let K be a kind of expression. A limitation on expression of kind K for reasons of type (a) or (b) cannot be justified, except in cases where:

(i) Those whose autonomy is limited would consent (under appropriate circumstances) to the limitation; and they have the option of withdrawing their consent; and

(ii) There is no limitation on the expression of reasons for and against the limitation on expression of kind K, except in cases where:

(ii-1) those whose autonomy is limited would consent to a limitation of kind L on the expression of reasons for and against the limitation on expression of kind K; and they have the option of withdrawing their consent; and

(ii-2) There is no limitation on the expression of reasons for and against the limitation on expression of kind L; except in cases where . . .

What kinds of exceptions could be justified under this exception?

TALBOTT'S RECONSTRUCTION OF SCANLON:

THE PICTURE: Each person conducts her experiment in living, relying on judgments of two kinds: (a) What is true and false? (b) What is the best way to live my life?

What is necessary for those judgments to be mine? Two conditions for NEGATIVE AUTONOMY: (1) INTERNAL. I must have normal human cognitive and emotional capacities and normal development of those capacities. (2) EXTERNAL. No one else must be permitted to interfere with the thought and expression of reasons for and against those two kinds of judgment (subject to the Consent Exception).

TWO CONCEPTIONS OF NEGATIVE AUTONOMY

NEGATIVE AUTONOMY (Narrow, Individualistic Conception): I have negative autonomy in this narrow sense when I have normal development of normal cognitive and emotional capacities and no one is permitted to interfere in my protected sphere of thought (beliefs and attitudes) and expression (subject to the Consent Exception), and when my choices are the product of my beliefs and attitudes, in the normal way.

NEGATIVE AUTONOMY (Broad, Non-Individualistic Conception): I have negative autonomy in this broad sense when most people have normal development of normal cognitive and emotional capacities and no one is permitted to interfere in anyone's protected sphere of thought (beliefs and attitudes) and expression (subject to the Consent Exception); and when my choices are the product of my beliefs and attitudes, in the normal way.

The surprising result: Negative autonomy in the narrow, individualistic sense is not enough. Negative autonomy in the broad, non-individualistic sense is necessary for my judgments to be truly my own. Negative autonomy in the broad sense requires guaranteed freedom of thought and expression and freedom of association and freedom of the press for everyone (subject to the Consent Exception).

In the remainder of this course, we will use "Negative Autonomy" in the broad, non-individualistic sense.

THE CONTRAST BETWEEN POSITIVE AND NEGATIVE AUTONOMY

POSITIVE AUTONOMY = to be governed by the True, Rational Self (rational beliefs about what is true or false and rational ends are the same for everyone).

NEGATIVE AUTONOMY = No interference in normal cognitive and emotional development and no interference with freedom of thought and expression, freedom of association and freedom of the press. The "true" self is the empirical self that emerges from this sort of process.