Abstract
After distinguishing questions about (a) the reasons for the value we attach to various forms of freedom of speech, (b) the grounds of the moral right to freedom of speech, and (c) the role of the state as a guarantor of freedom of speech, I argue (1) that the reasons for valuing freedom of speech have force only in certain of the contexts in which (and only for certain of the purposes for which) freedom of speech can be exercised, (2) that the moral right to freedom of speech must be supported not only by reference to the reasons that give freedom of speech its value but also by appeal to principles of distributive justice, and (3) that while the state, as a guardian of freedom of speech, must adopt measures both to prevent interference with freedom of speech and to provide opportunities for the effective exercise of freedom of speech, responsibilities of both these kinds must also be discharged by individuals and agencies in the private sector.
I am grateful for helpful discussion of this paper at the AMINTAPHIL conference on Free Speech in a Diverse World (Villanova University, September 25–28, 2008), especially to those who provided written commentaries – Deen Chatterjee, Ann Cudd, and Bruce Landesman. I am also indebted to the probing questions put by members of the Queen’s University Political Philosophy Reading Group at its meeting on September 24, 2008 – Andrew Lister, Chris Lowry, Margaret Moore, Christine Sypnowich, Francois Boucher, and Jenny Szende, among others. And I have benefited from many conversations about free-speech-related issues with Colin Macleod.
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Notes
- 1.
A qualified version of this sort of argument is to be found, e.g., in Tim Scanlon’s important early paper, “A Theory of Freedom of Expression,” Philosophy and Public Affairs, Vol. 1. No. 2 (Winter 1972).
- 2.
Some of these matters are taken up in a later section of this paper.
- 3.
Indeed, it may not be possible for them to have as much freedom to say what they please as would be in their own interest.
- 4.
Circumstances of this sort are familiar in democratic societies in which there is a great deal of economic inequality.
- 5.
The list is an adapted version of one provided by Cass Sunstein. See “Democracy and the problem of free speech,” Publishing Research Quarterly, Vol. 11, No. 4 (Winter, 95/96): 11. While Sunstein describes the items in his list as instances of “low-value speech” – noting that “all these can be regulated without meeting the ordinary highly speech-protective standards for demonstrating harm” – I cite them here as examples of “no-value” speech.
- 6.
While an attempt might be made to respond to the line of argument I have presented briefly here by distinguishing the question whether speech-acts of the sorts cited are unacceptable ways of exercising freedom of speech from the question whether (the presupposed form of) freedom of speech is nevertheless something we should value, I cannot here pursue the questions this response raises. Suffice it to say that a counter-argument can be constructed that builds on the closeness of the relationship there is between the value that attaches to freedom of choice (in standard situations in which this is a valued form of freedom) and the choice-worthiness of the options that make up the menu from which selections can be made. For example, the value of the freedom of choice I have in some area of my life is not enhanced when worthless options are added to those I already have, and the value of the freedom of choice I have is not diminished by the removal from the menu of options that are not even minimally choice-worthy.
- 7.
“Issues of political concern” can be taken, here, to be issues that bear, directly or indirectly, on the making of decisions, at various levels and in various contexts, about the shape of a society’s institutions and practices, or its laws and procedures.
- 8.
See T.M. Scanlon, “Freedom of Expression and Categories of Expression,” University of Pittsburgh Law Review, Vol. 40 (1978–1979): 519, and Joshua Cohen, “Freedom of Expression,” Philosophy and Public Affairs, Vol. 22 No. 3 (Summer 1993): 207.
- 9.
In a paper commenting on an earlier version of this paper Bruce Landesman raised the question whether freedom to engage in casual conversational exchanges – “idle chatter” is the expression he used – can be shown to “have value” by reference to the “purpose” it serves. While I agree that he is right to be skeptical of the view that this kind of freedom serves any such grand purpose as advancement of knowledge or protection and promotion of democratic decision-making processes, I argue above that its value consists in the indispensable contribution it makes to the establishment and maintenance of a wide range of the familiar relationships we stand in to other people. While not all such relationships, when examined, can be represented as valuable components of individual and social life, many of them play a crucial role in sustaining important social institutions and practices. Reasons can consequently be given for thinking that the freedom to engage even in “idle chatter” has value. See Landesman, “Confessions of a Free Speech Near Absolutist.”
- 10.
The counter-examples cited in the first argument are illustrative of the kinds of contexts in which all the reasons we have for valuing freedom of speech simply have no force.
- 11.
Consideration should also be given to all those (perhaps somewhat more restricted) contexts in which freedom of speech is something to which we have a moral right.
- 12.
Of course it’s a mistake to think of the state as the only source of threats of this kind, massive though its power to interfere in systematic ways no doubt is, and great though its incentive to do so often is when its power is challenged.
- 13.
My attention was drawn at the AMINTAPHIL Conference to an earlier article in which this sort of point is forcefully made by one of the Conference participants. See Virginia Held, “Access, Enablement, and the First Amendment”, in Philosophical Dimensions of the Constitution, eds. Diana T. Meyers & Kenneth Kipnis (Boulder & London: Westview Press, 1988), 158.
- 14.
The term “opportunity” is ambiguous as between (a) the sense in which it implies that anyone who has the opportunity to X is in a position to X simply by deciding or choosing to X and (b) the sense in which it means that someone who has an opportunity to X (say, take up a long-sought-after position by participating in a competition for the position) has no more than a chance of X-ing (that is, a chance– a high probability chance, perhaps, or a low probability chance, depending on the perceived strength of the applications for the position – of actually taking up the sought-after position). In cases of the second sort, participants in a job-competition will have an opportunity to take up the sought-after position in the first sense of “opportunity” only if and when they win the competition and are actually offered the job on a take-it-or-leave it basis. It is in the first of these senses that A must have the opportunity to participate in her society’s collective decision-making processes if it is to be true that she is “free” to participate in these processes. For discussion of this and other ambiguities in talk about “equality of opportunity,” see Alistair M. Macleod, “Equality of Opportunity,” in Moral Issues, ed. Jan Narveson (Oxford University Press, 1983), 378.
- 15.
Additional conditions would include, for example, (a) reform of the electoral system to ensure that the members of important law- and policy-making bodies are more fairly representative of the electorate, (b) abandonment of political campaign practices that are designed to exploit the vulnerabilities of less reflective voters by presenting skewed messages about the content or the importance of the issues on which elections are fought, and (c) adoption by the media of less simplistic criteria of “balance” in the selection and presentation of politically-sensitive news items. In the case of such conditions as these too, both state and non-state actors clearly have important roles to play in efforts to secure their fulfillment.
- 16.
It is necessary to underscore this point because its importance is often either overlooked or underemphasized.
- 17.
It was an important part of the account of the ground of the moral right to freedom of speech in an earlier section to make this point.
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Macleod, A.M. (2010). Free Speech, Equal Opportunity, and Justice. In: Golash, D. (eds) Freedom of Expression in a Diverse World. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 3. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8999-1_5
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