About Free Speech

Immensely weighty but not sacred

Is free-speech sacred?  Some people seem to think so.  As important as I think free speech is—and I do think it is extremely important—I don't think much of anything is sacred.  Things can be immensely weighty (i.e., important and motivating) without being sacred. Free speech on college campuses, for example, is as close to being sacred as I can imagine—almost never outweighed. That thought, is largely because open inquiry, as I have said elsewhere, “is the lifeblood of colleges.  Their raison d’être is to create knowledge and encourage its spread through reasoned dialogue.  This entails that … silencing … would kill colleges” (see my “The Harms of Silence”).

On my view, the only thing that justifies intervention is harm, where “to harm” someone is to wrongfully setback their interests.  Speech is not ordinarily harmful so ordinarily does not justify interference.  That means speech should not ordinarily be limited.  I see no good reason, though, to think speech can never be harmful.  This is perhaps largely because I see no reason to deny that there are real psychological harms and that these can be caused by spoken words (in specific sorts of cases).  The issue, though, is more obvious than that.  One can harm another by wrongfully wounding them psychologically, but one can also harm another through defamation and other cases of recognized wrongful speech.  I assume we all agree that laws against slander, libel, and defamation, for examples, are reasonable even though they are limits to speech.  They legally limit speech in entirely acceptable ways that do not denigrate the value we attribute to speech.

Legally actionable limits to free speech are and, on my view, should be extremely rare. But my thinking about that includes additional concerns—especially concerns about the costs of limiting speech.  Nonetheless, on my view, if one uses speech in a way that psychologically harms another—perhaps through verbal abuse—it becomes reasonable to ask if we (individually or through some group or governmental organization) should interfere.  Of course, intervention may not be permissible all things considered even if there is a harm.  The details of the case will matter.

In philosophers' terms, harm is a necessary, but not a sufficient, condition for intervention.  What this means is that if there is a harm caused by speech, it becomes reasonable to ask whether or not intervention is warranted, but we may well conclude that it is not.  The fact that speech caused harm opens the question. What allows us to answer the question is another story.  It's a story, in fact, that I readily admit I can't fully answer.  One obvious way to think about the question is in terms of costs and benefits.  Importantly, cost-benefit analyses vary depend on who the actor is—because the costs and benefits often depend on that.

Consider an example I've used elsewhere. One-time Johnny smacks you across the face, hops in his car, gets to the airport, hops on a plane, and flies to China.  You didn't go to the police until he was already in flight.  Should the police chase Johnny to China?  To my mind the answer is clearly “no.”  The cost of chasing him is too high given the small harm.  Now consider the same example but instead of Johnny slapping you in the face, he releases a somewhat embarrassing picture of you.  Again we can ask if the police should chase Johnny to China.  Again to my mind the answer is "no” (though less obviously).  But note that it is a question.  

The fact that Johnny didn't physically hurt you when he released the embarrassing picture doesn't mean he didn’t harm you.  Perhaps the harm is minor, but that doesn’t mean it isn’t harm.  The same would be true if Johnny verbally insulted or berated you in front of others.  What I want to point out is that the question of whether we should interfere with Johnny in these sorts of cases is real—and there may in fact be a case like these where the non-physical harm is so severe that we do think Johnny should be interfered with in some way—perhaps even seeking extradition.

Most cases are not like One-time Johnny.  They differ for many reasons, but one one way they may differ can be a lower cost of intervention—most offenders don't get on a plane to China after they commit their offense.  Importantly, the cost benefit analysis must take into account various factors that may be extremely difficult to quantify.

So the question: should we interfere with speech that some consider harmful?  Assume the speech in question is harmful.  That is, assume an utterance by one person to another harms the latter.  Assume also that the costs of intervention are low—reaching the offender is simple and other costs of interference in the specific case are also low.  This makes interference more plausible. Still, the costs of the immediate case aren't the only costs.  There are long-term costs to consider.  Here we must consider standard free speech arguments.

We don’t want to set a precedent that claims of harm—especially those that are hard to show are actually harms rather than things that merely offend—are always worthy of interference.  If people think they have a right not to be offended they will begin to see offense more often and invoke the right more often.  This is not a recipe for a good society.  It reduces the chances for honest civil discourse—which helps improve improve our reasoning abilities, our understanding of the issues we discuss, and our understanding of each other.  That last may be especially important in our current situation as it can help us better connect with others and reduce any animosities we might otherwise develop.  These would all be significant losses—costs that are admittedly difficult to quantify, but clearly significant.  They are so weighty that the usual conclusion is that government must not limit speech.  That is, these sorts of considerations usually mean that the reasons to interfere with a piece of speech are outweighed by a need to keep speech flowing.  

In some cases, though, the cost-benefit analysis may lead to a different conclusion.  For example, the significant harms to a person in a case of slander may outweigh the reasons to refrain from interference.  For another example, while we may want the freedom to protest against a firm or a government policy, we may think the costs of allowing such during rush hour right at the entrance to a busy building outweigh the need for speech (hence, time, place, and manner limits).  And for yet another example, In a case where someone’s repeated speech ridiculing a child will result in that child being psychologically impaired for the rest of their lives and where that speech contributes no knowledge or fodder for debate for others, it’s limit seems likely to be justified.

I’ve been speaking as if the agent that might interfere is the government.  The costs of government interference are high when we are talking about limits to speech.  They include additional burdens on the legal system as well as the worries discussed above. But other organizations may have different—and perhaps lower—costs.  The resulting cost-benefit analysis for such an organization would thus be different.  A private employer, for example, may face significantly lower costs than the government if it decides to make offensive speech (of whatever sort) a fireable offense.  (Or not; this will depend on the circumstances.)  Similarly, the cost to an individual of interfering with psychologically abusive speech by a parent to a child may be completely outweighed by the child’s need for help (perhaps the interference is explicitly condemning the parent, perhaps its calling the local government child advocacy agency.)

I hope it is obvious that I am not saying that any statement one does not like or finds offensive is a harm.  Indeed, I suspect the vast majority of offensive statements are not.  Still, in certain circumstances speech can harm.  The most obvious cases are slander, libel, and cases whereby a parent repeatedly tells a child she is incompetent, lazy, worthless, etc.  These are all cases where there is likely long term damage (and whereby causing the damage is almost certainly not justified).  (Note that with regard to the cases of psychological child abuse, the evidence of such may not be legally actionable on its own—maybe it should be—but can serve as part of a legal case against the parent.)