Governmental Self-Restraint and Individual Self-Respect

This pivotal chapter presents a novel justificatory foundation for the principle of freedom of expression. It elaborates a Stoical ideal of ethical strength as self-restraint, and it contends that a key element of the realization of that ideal by any system of governance lies in the system’s compliance with the principle of freedom of expression. Through arguments based on some of the ideas in Matthew Kramer’s 2017 book Liberalism with Excellence, the chapter then shows how the compliance with that principle by a system of governance crucially affects the levels of self-respect that are warranted for the members of the society over which the system presides. As a consequence, that compliance is essential for the fulfilment of the system’s paramount responsibility to bring about the political and social and economic conditions under which every member of its society can be warranted in feeling a strong sense of self-respect.

Pornography, Subordination, and Silencing

Whereas the first four chapters of this book have sought to articulate the content and implications of the principle of freedom of expression and have likewise sought to justify the sway of that principle as a moral absolute, the present chapter seeks to rebut some sophisticated arguments that have been propounded in recent decades by Rae Langton and other analytic feminist philosophers (including Ishani Maitra, Mary Kate McGowan, and Jennifer Hornsby) on the topic of pornography. With the aid of J.L. Austin’s speech-act philosophy, Langton has argued that the widespread availability of hard-core pornography in a society constitutes the subordination of women and causes the silencing of women. This chapter, the longest in the book, first refutes Langton’s claims about the constituting of women’s subordination and then contends that her claims about the causation of silencing—even if correct—are otiose as considerations in support of legal restrictions on pornography.

Hatred, Dignity, and Freedom of Expression

In his 2012 book The Harm in Hate Speech, Jeremy Waldron has argued sustainedly in favor of hate-speech laws like those that have been enacted in most of the European liberal democracies and in Canada and the Antipodes. His main target is the American position on hate speech, for in the USA any laws along the lines of those just mentioned would be violative of the First Amendment to the American Constitution. This chapter maintains that the gist of the American position is not only a corollary of the First Amendment but also a corollary of the moral principle of freedom of expression. Even more strongly, the chapter contends that the hate-speech statutes championed by Waldron are profoundly demeaning for any country wherein they are adopted. The adoption of such statutes both ensures and presupposes that a system of governance has failed to meet its responsibility to bring about the political and social and economic conditions under which every member of a society can be warranted in harboring an ample sense of self-respect.

Legitimate Restrictions

Although the principle of freedom of expression is a moral absolute that imposes general duties which bind all systems of governance always and everywhere, it is consistent with various legal or governmental restrictions on modes of expression—provided that those restrictions are directed against the modes of expression not qua modes of expression but instead qua communication-independent misconduct. This chapter explores this aspect of the principle of freedom of expression by cataloguing various types of communicative conduct that can properly be subjected to legal restrictions. Among those types of communicative conduct are perjury, libel, solicitation to commit a crime, true threats, fighting words, incitement (in the sense of the term articulated by the U.S. Supreme court ruling in Brandenburg v Ohio), and fraud. All of these types of communicative conduct, along with several others, can be legally prohibited in accordance with the principle of freedom of expression.

Components of a Theory of Freedom of Expression

This chapter introduces many of the key concepts that are of distinctive importance in any theory of freedom of expression. It first explores the nature of expression or communication (comprising addressors, addressees, communicative contents, and certain intentions), and it then considers whether the distinction between speech and conduct is tenable. Contending that the distinction between high-value modes and low-value modes of expression does not have any bearing on the applicability of the principle of freedom of expression, the chapter maintains that that principle protects every mode of expression against any governmental restrictions that are directed against it qua mode of expression. Compliance with that principle by a system of governance involves several types of neutrality, which the chapter expounds. Having explored the ways in which a system of governance can fail to achieve those types of neutrality, the chapter then explains how the purposes of various laws or policies are to be ascertained. Thereafter, the chapter concludes by pondering how private parties (such as hecklers and employers and organizations in charge of public fora) are constrained by the principle of freedom of expression.

Introduction: Philosophical Preliminaries

This chapter expounds some technical philosophical notions that figure prominently in the rest of the book. Among the phenomena elucidated are moral conflicts, strong permissibility versus weak permissibility, overtopping obligations versus non-overtopping obligations, weak absoluteness versus strong absoluteness, physical freedom versus deontic freedom, the Hohfeldian analysis of legal positions (claim-rights and duties, liberties and no-rights, powers and liabilities, and immunities and disabilities), and the distinction between causal relationships and constitutive relationships. Although all of these concepts and distinctions are of great significance in debates over the principle of freedom of expression, they also figure saliently in many other debates. Hence, the purpose of this introductory chapter is to provide the basic philosophical preliminaries that are needed for a rigorous engagement with the principle of freedom of expression. The chapter sets the stage for the subsequent chapters, where that principle is the focus of attention.

Conclusion: The Principle of Freedom of Expression in Practice

This chapter concludes Freedom of Expression as Self-Restraint by probing briefly a few of the knotty procedural issues that attend the efforts by any system of governance to implement the moral principle of freedom of expression (or, rather, to implement some constitutional or statutory guarantee that corresponds more or less closely to that moral principle). Among the issues at which the chapter glances are the scalar character of compliance by systems of governance with the principle of freedom of expression, the legal remedies that are apposite for giving effect to the moral obligations imposed by that principle, the location and stringency of the burden of proof in litigation where communicative liberties are at stake, and the location of the general legal powers to invalidate statutes and other laws. The chapter explains why these issues have been consigned to a fairly brief concluding portion of the book, instead of being treated in depth.