Version: v1, Published online: 1998
Retrieved April 23, 2018, from https://www.rep.routledge.com/articles/thematic/freedom-of-speech/v-1
Nowadays, controversy over free speech centres mainly upon its limits. Debates about those limits focus on two matters: the scope of speech and the harms that might be wrought by speech.
What some seek to protect as speech, others deny is speech in any credible sense. For example, attempts to incorporate pornographic displays within the free speech principle have met with the objection that those displays have no communicative content and are not speech in any reasonable sense (see Pornography). In addition, some of what would ordinarily be termed speech may not qualify as speech of a privileged kind. Advertisers, for instance, are engaged in intentional communication but arguably justifications of free speech provide no case for including commercial advertising in the category of privileged speech. Equally, there are acts, such as flag-burning or wearing a symbolic armband, which would not ordinarily be described as speech but which may be encompassed by the free speech principle because of their expressive or communicative character. In some measure, then, the limits of free speech are set by what its justifications imply should count as speech.
Second, speech is often limited because it proves harmful. It is sometimes held that speech, because it is speech and not action, cannot harm; but that is clearly not so. Defamation damages a person’s reputation and that harm is usually accepted as reason enough for proscribing libellous speech, provided that what is said is neither true nor ’fair comment’. Speech which invades privacy is also a candidate for proscription where no genuine public interest is at stake; here even ’truth’ is no defence – there are some things that a public has no right to know. Other types of speech that are often outlawed because of their alleged harmfulness are obscenity and pornography, incitements to violence and other sorts of illegal conduct, and speech which incites hatred, particularly racial hatred.
Four types of controversy surround claims about the harmfulness of speech. One is the essentially empirical question of whether a particular form of speech actually causes the harm it is alleged to cause. Many people, for example, believe that pornographic material encourages sex crimes, while others claim it has no such effect and may even provide a catharsis which reduces criminality. A second issue is whether an alleged harm is really a harm. If a speaker incites others to overthrow a political system or to defy a law, is that harmful? Clearly, the answer will depend, in part, upon our estimate of the political system or the law at stake (see Law, limits of §4).
A third matter is whether an acknowledged harmful effect is sufficiently harmful to justify restricting speech. Should we, for instance, outlaw blasphemous statements so that people with religious convictions are spared offence? Given the weight of the free speech principle, a harm will have to be significant and substantial to justify curtailing speech. On the other hand, in making that assessment it is reasonable also to take into account the nature of the speech involved, even when it is speech whose subject falls within the privileged realm. For example, the case against prohibiting offensive religious statements will be less strong if those statements are merely scurrilous and aim only to cause distress than if they form part of a serious disquisition.
In most cases in which we restrict harmful speech, we are delimiting the right of free speech. For example, in accepting laws of libel we are accepting that people have no right to engage in defamatory speech. But there is a fourth area of debate concerning harm that is about overriding rather than defining the right of free speech. Suppose someone addresses a hostile audience; they say nothing they are not entitled to say but the audience starts to react violently; the authorities, anxious to prevent a riot and to protect life and limb, step in and silence the speaker. In these circumstances, we might accept that, all things considered, the authorities rightly silenced the speaker even though the speaker had committed no wrong. In such cases, we are not setting the boundaries of the right of free speech; rather we are accepting that there are circumstances in which the right may be justifiably overridden.
Not every wrong that is cited as a reason for limiting speech is readily described as a ’harm’. ‘Indecency’ and ’obscenity’, for example, are sometimes condemned for reasons other than the injury they do to others. Generally, there is a reluctance nowadays to accept that statements should be prohibited merely because they are false. After all, fallibility and uncertainty about truth figure prominently in the case for free speech. One current and controversial exception is the Holocaust, denial of which is now outlawed in some countries. Even that measure, however, is often justified as a way of combating racism and of preventing affronts to victims of the Holocaust, rather than as a simple endeavour to uphold truth by law.
Not all rules which govern speech should be conceived as restricting it. For example, orderly discussion of issues in a legislature requires rules of debate and, taken in the round, those rules regulate rather than restrict speech. Similarly, there is a difference (although one that is often controversial) between regulating and restricting street demonstrations.
In all cases in which speech is limited, determining where precisely the boundary should fall can prove difficult. Legislators and judges need precise distinctions between the tolerable and intolerable, yet general philosophical arguments often fail to supply those sharp distinctions. In addition, debates about the moral limits of free speech need not be wholly identical with debates about its proper legal limits. Because there is reason to fear political power and the clumsiness of law, the legal right of free speech may be cast more generously than the moral right. Thus, morally, there may be things that we ought not to say, even though, legally, we are and ought to be free to say them.
Jones, Peter. Limits. Freedom of speech, 1998, doi:10.4324/9780415249126-S008-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/freedom-of-speech/v-1/sections/limits.
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