PHIL. 410A: DISCUSSION QUESTIONS FOR WEEKS 6-7 ON THE BASIC LIBERTIES, WITH SPECIAL ATTENTION TO RIGHTS TO FREEDOM OF EXPRESSION

DISCUSSION QUESTIONS ON RAWLS (LECTURE VIII).

1. As you read Rawls's derivation of the right to liberty of conscience, notice the similarity to many of Mill's arguments. However, the argument is not utilitarian. Why not?

2. Consider Rawls's discussion of why agents in the Original Position would not gamble on being in the majority on religious, philosophical, or political views. Consider a different argument that might be offered in the Original Position for intolerance of minority views in religion, philosophy, and morals: It does not matter which views of this kind are held, so long as they are universal (with no tolerance of dissent) society will be much better for everyone than if dissent is tolerated. How would Rawls respond to this argument?

3. Subversive advocacy. In the Dennis case, the U.S. Supreme Court upheld the constitutionality of the Smith Act, which made it illegal to advocate the forcible overthrow of the government. Call advocating the forcible overthrow of the government, subversive advocacy. The communist party also advocated replacing the existing government with a communist government that would not guarantee “bourgeois” rights. A communist government would not tolerate any alternative political views. It would not even tolerate the view that the government ought to tolerate alternative political views. So the communists represent what I refer to as intolerant subversive advocacy. Consider Rawls’s argument for tolerating subversive advocacy. Explain why they also are arguments for tolerating intolerant subversive advocacy. Does the Original Position play any essential role in the arguments?

4. How did the court interpret the clear and present danger rule in Dennis? How did the decision in Brandenburg alter the understanding of the clear and present danger rule?

5. Fair value of the political liberties. What does Rawls mean by the fair value of the political liberties? Why does Rawls’s liberty principle not guarantee the fair value of other liberties besides the political liberties?

6. According to Rawls, why are the basic liberties inalienable? Explain.

DISCUSSION QUESTIONS ON FEINBERG AND SCANLON.

1. What does Feinberg mean by "the harm principle"? Is his version of the harm principle equivalent to Mill's? Why does Feinberg believe that "the harm principle" is a largely empty formula. Explain your answers.

2. Feinberg discusses Mill's "infallibility argument" (p. 192) and gives it an interesting twist. On Feinberg's reconstruction of the argument, why does the argument not require the premise that the government is fallible about everything (i.e., that it is not infallible about anything)? What is the weaker premise about the government's infallibility (or lack of it) that Feinberg employs, and why does he think it is an uncontroversial premise?

3. What is Scanlon's Millian Principle? What does it mean for a harm to consist in a person’s coming to have false beliefs? [Be careful. You cannot include any of the effects of their having the false belief in your answer.] Which kinds of harmful consequences are excludedby clause (b) of the Millian Principle as grounds for legal restrictions?

4. Would Mill accept Scanlon’s Millian Principle? Would Feinberg accept it? Why is Scanlon's defense of it not consequentialist (e.g., not utilitarian)?

5. Defamation. For each of Thomson, Mill, Rawls, Feinberg, and Scanlon, answer the following questions: Would their theories allow a right to recover damages (e.g., lost business) due to defamation? If so, under what circumstances and on what grounds? If not, why not?

6. Privacy and "malicious" truth: Feinberg argues in favor of a tort of "malicious truth"--that is, a right to recover damages from those who spread malicious truths about one's personal life. Which, if any, of Thomson, Mill, Rawls, and Scanlon would favor such a tort, and which, if any, of them would oppose it? Explain your answers. Would you favor or oppose it?

7. Feinberg and Scanlon both agree that it should not be legal to shout “Fire!” in a crowded theater. Explain why their reasons are different. What would Rawls say about this case?

8. Feinberg and Scanlon would both agree that the government should be able to make it illegal to disseminate a simple recipe for nerve gas. Explain why their reasons are different.

9. Scanlon’s Exception. Scanlon considers the possibility that someone who recognized a fatal weakness for bad arguments might agree to limitations that would prevent him from being exposed to those kinds of arguments. This leads him to formulate an exception to the Millian Principle. What is it?