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 (
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 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 the expression of reasons for and
against the limitation on expression of kind K; 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.