Freedom of Expression, Autonomy, and Defamation - Springer

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FREEDOM OF EXPRESSION, AUTONOMY, AND DEFAMATION1

Undoubtedly, the values of freedom of expression and personal autonomy dominate the liberal agenda. Traditionally, liberals have defended and fought for the right of the people to be the authors of their decisions and for their right to speak free from governmental interference. They have tended not, however, to explore in detail the connection between these two rights. I subscribe to the view that the above values are conceptually linked in the sense that autonomy provides the most satisfying rationale for freedom of expression. In this essay I will not argue for the superiority of the autonomy rationale vis-`a-vis other candidates such as democracy, truth, toleration or the marketplace of ideas. Instead, after offering a brief account of the former, I will take up the problem of the legal regulation of defamatory speech as seen from the autonomy point of view. The arguments given will be strictly philosophical, and although references to the American legal theory and practice abound, the conclusions drawn are taken to apply to common and civil law systems alike. The very purpose of this normative inquiry is to provide legislators, legal scholars and citizens in liberal democratic states with useful suggestions and insight that may eventually result in specific interpretations or changes in the existing free-speech legislation. A. AUTONOMY AND FREEDOM OF EXPRESSION

Personal autonomy or self-determination is a complex notion consisting of three basic elements. In particular, it presupposes a 1

This essay is part of a book-length work in progress on the philosophical foundations of freedom of expression. An earlier form of it was presented at a conference on liberalism held at the University of Lotz, Poland in September 1996. I would like to thank P. John Kozyris, W. Norman, S. Virvidakis, the anonymous referees and the participants of the conference for their valuable comments and suggestions.

c 1998 Kluwer Academic Publishers. Printed in the Netherlands. Law and Philosophy 17: 1–17, 1998.

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combination of capabilities, opportunities and self-reflection.2 And ideally autonomous agency requires the presence of all of them. By capabilities I mean certain skills that are the product of education; physical and psychological traits such as the ability to move, speak, and think; and resources and means such as money and rights the agent must possess in order to make and materialise important decisions. The term “opportunities” refers to the existence of an adequate, desirable and interesting range of options. And the term “self-reflection” describes the mental activity by which an agent is examining her decision-making procedure and the procedures regulating belief- and desire-formation and acceptance in order to revise, reject or identify authentically with her decisions, beliefs and desires. From this definition it follows that personal autonomy has two dimensions, the volitional and the epistemic. The former deals with the authenticity of decisions and desires, the latter with the formation of beliefs. These two aspects of autonomy are necessary to assure the agent that there are no internal (bias, addiction and so forth) or external (insufficient evidence, deception and so forth) factors preventing her from making the decisions she would like to, and from knowing that her beliefs are in fact true and justified. Ideally, the presence of these conditions enables agents – on the basis of their approved desires, authentic decisions and corroborated beliefs, combined with their capabilities and opportunities – to exercise control over their lives and to pursue their conception of the good in a consistent and rational manner. No one can be ideally autonomous, but most people can approach this ideal in varying degrees and the potential of the overwhelming majority can be increased by securing the appropriate socio-economic environment. There is a widespread conviction among liberals and many others that autonomy is not a matter of personal ambition but rather a higherorder moral ideal that generates strict obligations. These do not 2 This analysis has been shaped by the following works: Harry G. Frankfurt, “Freedom of the Will and the Concept of the Person”, The Journal of Philosophy 68 (1971), pp. 5–20; Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986); Joel Feinberg, The Moral Limits of Criminal Law: Harm to Self, volume 3 (New York: Oxford University Press, 1986); Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge: Cambridge University Press, 1988); Jack Crittenden, “The Social Nature of Autonomy”, The Review of Politics 55 (1993), pp. 35–65.

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include the obligation to make everyone as autonomous as possible. However, they include the duty to prevent unjustifiable restrictions of people’s autonomy and the morally equivalent duty to create conditions that favour its exercise. Now, the significance of freedom of expression for the pursuit of autonomy is twofold.3 It is important for self-reflection and as a capability. First, if expression is constrained, people are deprived of valuable information pertaining to the decisions they make (or could make) and of the means for reviewing their beliefs and desires. Second, since many acts are brought about through some form of oral, written or symbolic communication, the exercise of our autonomy is thwarted if restrictions are imposed on free expression. Many of our decisions are expressive decisions and freedom of expression is a necessary means for putting them into effect. Within their range fall not only decisions to pursue trivial wishes and to make inconsequential comments, but decisions to affirm and to make public the forms of life4 one cherishes. And it is even possible for some of these expressive decisions not to aim at some further end, such as the advocacy of one’s conception of the good in the presence of others, but to be valued per se as essential components of our wellbeing. For instance, talking to oneself is of paramount importance for someone in solitary confinement or for a child in its early stages of development.5 A note of caution. It would be a mistake to see the autonomous agent as a solitary self-sufficient individual who refuses to identify with a particular cultural tradition or to undertake long-lasting commitments. “Autonomy does not entail”, as Jack Crittenden points 3

Cf. Robert Young, Personal Autonomy: Beyond Negative and Positive Liberty (London: Croom Helm, 1986), pp. 89–96; Danny Scoccia, “Autonomy, Want Satisfaction, and the Justification of Liberal Freedoms”, Canadian Journal of Philosophy 17 (1987), pp. 583–602; Susan Easton, “Autonomy and the Free Speech Principle”, Journal of Applied Philosophy 12 (1995), pp. 27–39. This account bears some similarities with the theory of David A.J. Richards who drawing upon Rawls stresses the role of “communicative integrity” to the development of “our dual powers of rationality and reasonableness”. See his Toleration and the Constitution (New York: Oxford University Press, 1986). 4 This is a point Joseph Raz makes in “Free Expression and Personal Identification”, Oxford Journal of Legal Studies 11 (1991), pp. 303–324. 5 For the significance of egocentric speech for the co-ordination between thoughts, language and actions in children see the classic study of L.S. Vygotsky, Thought and Language (Cambridge MA: Harvard University Press, 1962).

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out, “a necessary rejection of society’s values or isolation from the presence of the influence of others.”6 The crucial distinguishing mark of the autonomous individual is that she reflects upon the values prevailing in her society in order to endorse, modify or reject them, and that she is always ready to reconsider her commitments, her attitudes and her conception of the good in the light of new evidence. Moreover, expressive decisions are not exhausted in pursuing private and self-regarding projects; they can aim at achieving collective goals such as convincing the authorities of the urgency of radical reforms.7 One can object to this account that it does not protect the freedom of expression of non-autonomous people. This criticism can be accommodated be claiming that, since autonomy is a matter of degree, most people are regarded as possessing to a greater or lesser extent the capacity of acting autonomously. For instance, even the mentally ill make some sort of expressive decisions, even if they do not meet all the criteria of autonomous decision-making. Undoubtedly, completely non-autonomous individuals, such as the comatose, do not fall within the scope of the theory, but this, I presume, does not matter much to them. After this brief account of the autonomy rationale for freedom of expression we can proceed to a sketch of the concept of defamation. B. DEFAMATION

According to the Oxford Concise Dictionary of Law, defamation is “[t]he publication of a statement about a person that tends to lower his reputation in the opinion of right-thinking members of the community or to make them shun or avoid him.” In the common 6

Crittenden, op. cit., 37. Sometimes the use of the term “self-expression” instead of “autonomy” is likely to lead to misunderstandings. Cf. the comment of Tom Campbell: “This [i.e. the concept of self-expression] does not capture the point of view of participants who, routinely, are not interested in self-expression as such, but rather in changing the world for some ulterior purpose, such as spreading a message they believe in, changing government policy or protecting their own interests.” “Rationales for Freedom of communication”, in Tom Campbell and Wojciech Sadurski (eds.), Freedom of Communication (Aldershot: Dartmouth, 1994), p. 35. I believe that the autonomy rationale clearly protects public statements made with the above purposes. 7

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law tradition a plaintiff seeking to file a libel or slander action must establish, apart from the existence of a defamatory communication, (a) that, in addition to the libeller and his victim, a third person was aware of the above communication, and (b) that the plaintiff can be easily identified as its target.8 For the purposes of this inquiry I would like to extend this legal definition to include statements that tend to insult, hurt, provoke, humiliate and ridicule individuals, even if they are not communicated to a third party. Furthermore, for our purposes, the terms “statement” and “publication” should be given the broadest possible interpretation by including not only written statements and spoken words (libel and slander), but all the symbolic actions (like gestures and pranks) people might resort to in order to overtly belittle others. From the above definition it follows that one’s conception of defamation is directly dependent on the moral standards that prevail in a specific society, since a person of good reputation is someone who exemplifies certain commonly recognised moral qualities. But even within this particularised context there is room for disagreement as to what constitutes defamation. In regard to their epistemic content defamatory statements can be classified as true, false and indeterminate. If I keep telling everyone I meet that “the fish served in Jim’s restaurant is always rotten” in order to make him move his business to another area, although I know that this is not the case, then I am responsible for a false defamatory statement. On the other hand, if I call a person of Asiatic origin “slanty-eyes”, no one can call me a liar, but my intention is to make her feel inferior. However, the epistemic status of defamatory words such as “slimeball” or “bitch” is indeterminate, since there is no consensus concerning their correct application. It would be futile to try to prove, in the strict sense, that someone is a “cunning bastard”, but still in most cases the audience understands what I intend to accomplish by uttering these words. In this category we can also include defamatory utterances devoid of truth-value such as commands (“fuck off”), wishes (“may you rot in hell”) or questions (as when one publicly asks a politician: “Are all these bribes you receive enough to satisfy your greed?”). Finally, the most common 8 See Ralph L. Holsinger, Media Law, 2nd edn. (New York: McGraw-Hill, 1991), pp. 90 ff., and Lyrissa Barnet Lidsky, “Defamation, Reputation, and the Myth of Community”, Washington Law Review 71 (1996), pp. 4–5.

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defamatory strategies either focus on some negative aspect of the victim’s character, appearance, behaviour or professional status or they associate her with an easily identifiable (racial, ethnic, religious etc.) group that is supposed by some people to possess certain negative qualities. C. OUTLINING THE PROBLEM

The case of defamation poses an interesting challenge to the credibility of the autonomy rationale. Is the libeller’s autonomy the only thing that matters? And if it is not, when should the interests of those affected by defamation take precedence? The handy answer that defamation should be subject to civil and possibly criminal sanction (depending on the law in force) because it is offensive is of no avail here.9 Offence is associated with certain undesirable and disliked mental states one experiences, such as hurt, anger, shame, sorrow, distress, embarrassment and anxiety that are provoked by the conduct of another person and they are not accompanied by an infringement of any other of the offended party’s interests.10 But the presence of these experiences is not in principle incompatible with the autonomous life. The autonomous person is not necessarily a happy person and she can do without pleasant feelings. Moreover, autonomous decisions can be taken, even when one feels offended. Of course, one can argue the offence caused by defamatory speech dissuades people from being engaged in serious and constructive dialogue, but this is not regarded as sufficient reason to warrant legal 9

Cf. the offence principle as defined by Joel Feinberg: “It is always a good reason in support of a proposed criminal prohibition that it would probably be an effective way of preventing serious offence (as opposed to injury or harm) to persons other than the actor, and that it is probably a necessary means to that end.” The Moral Limits of Criminal Law: Offence to Others, vol. 2 (New York: Oxford University Press, 1985), 1. Feinberg speaks of criminal prohibition but the principle could be enlarged by assuming that causing offence is “good reason” for holding someone legally responsible. 10 For discussions of the liberal conception of harm and offence see among others Feinberg, ibid., Donald Vandeveer, “Coercive Restraint of Offensive Actions”, Philosophy and Public Affairs 8 (1979), pp. 175–193; Anthony Ellis, “Offence and the Liberal Conception of Law”, Philosophy and Public Affairs 13 (1983), pp. 3–23, and Jeremy Waldron, “Mill and the Value of Moral Distress”, in Liberal Rights: Collected Papers 1891–1991 (Cambridge: Cambridge University Press, 1993), ch. 5.

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intervention.11 Thus, we should turn to the remaining options for establishing the link between defamation and the autonomy rationale for freedom of expression and its legal implications. This inquiry is constrained by the need to reach conclusions that do not contradict other fundamental liberal assumptions. One solution is to bite the bullet and consistently avoid setting any limits on defamatory speech on the ground that such an action would constitute an unjustifiable violation of freedom of expression and its underling principle. Within this frame, Jonathan Rauch12 holds that putting up with sexist and racist prejudice is the price we have to pay for maintaining an atmosphere of intellectual pluralism, an atmosphere that contributes significantly to the promotion of self-development. David A. J. Richards also points out that hatespeech and group libel laws are incompatible with liberal principles, although his objections do not include, mistakenly in my opinion, individual libel.13 First, he claims that “[I]f racism is in part rooted in such abridgements of basic rights [i.e. the rights to conscience and free expression], it cannot be a reasonable remedy for racism as such for the state to abridge such rights even when its ostensible purposes are to combat racist speech.”14 Second, the enactment of group libel 11

Perhaps, one might claim that her conception of the good is not to be offended in any sense, but this does not constitute a plausible argument for legal intervention. In a liberal society law must guarantee certain conditions (respect of basic positive and negative rights, protection of economic freedom, absence of force and fraud etc.) that make it easier for people to pursue a great part of their plans. However, it cannot secure the successful completion of particular plans. From the fact one’s conception of the good might be limited in not having any contact with women, it does not follow that a court is vested with the authority to issue a restrictive order prohibiting all women from coming close to him. 12 “In Defence of Prejudice: Why Incendiary Speech must be Protected”, Harpers Magazine (May 1995), pp. 37–46. 13 The reasons upon which he draws this distinction are that (a) in individual libel actions we have to deal with easily refutable false allegations and (b) in group libel actions the communications under examination “express general conscientious views of speakers and audiences, whose nature and effect both depend on evaluative conceptions”. David A. J. Richards, “Liberalism, Free Speech, and Justice for Minorities”, in Jules L. Coleman and Allen Buchanan (eds.), In Harm’s Way: Essays in Honour of Joel Feinberg (Cambridge: Cambridge University Press, 1994), p. 102. However, I cannot see why courts in general fare better in establishing the falsity of, say, racial slurs addressed against individuals rather than groups, and why it is unlikely for individuals to defame other individuals relying on strong normative convictions. 14 Ibid., 101.

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laws presupposes on the part of the state the outright rejection and the persecution of certain normative ideas people express. This not only has a stifling effect on public debate and discussion, but it also counteracts the pivotal liberal commitment to a government that remains indifferent between substantive individual conceptions of the good.15 Yet, these answers appear problematic and unsatisfactory. It is intuitively evident that in certain contexts defamatory speech can have dire consequences no liberal can condone. And, as to the arguments of Richards, one can retort that in extreme circumstances and in concert with other strategies16 the law should contribute to the struggle against racism and that a liberal government cannot take a stance of moral neutrality when questions of social justice emerge. A second solution is to admit that autonomy does not offer absolute protection to every expressive act and point to other values that might justify restrictions on freedom of expression. This appears to be the strategy of Martin H. Redish who acknowledges that in certain situations “free speech interests must give way : : : to a competing social interest” and for this reason some form of balancing must be introduced.17 Thus, defamatory speech can be subject to regulation. The trouble, however, with the second solution is that, once the weighing of the principles validating freedom of expression against other principles is allowed, the way is in a significant sense paved for a complete suppression of speech. This is not to say that those responsible for the above balancing will necessarily give priority to the various “social interests” that would be in each case at risk at the expense of free speech values. Nevertheless, the introduction of different normative considerations that might be incommensurable with autonomy can complicate matters to the extent of facilitating arbitrary or biased decisions. The situation is further aggravated, once we take into consideration the view – which can be traced back to Mill’s On Liberty – that entirely uncontroversial non-trivial public statements are not common in pluralistic societies marred by unbridgeable moral disagreements and intense conflicts 15

Ibid., 102. For an illuminating discussion of nonlegal remedies for hate speech in campuses see Amitai Etzioni, The Spirit of Community: Rights, Responsibilities, and the Communitarian Agenda (New York: Crown, 1993), ch. 7. 17 Martin H. Redish, Freedom of Expression: A Critical Analysis (Charlottesville: Michie, 1984), p. 55 and passim. 16

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of interests. This practically means that a court can always appeal to some “social interest” put at risk by a defamatory communication and decide its suppression. A third solution is to espouse a more restrictive and moralized conception of autonomy18, along Kantian lines, and then seek to denounce defamation in terms of the latter. On this account there is an inherent connection between autonomy and the determination of one’s actions by a self-imposed moral law. In Kant’s words “a free will and a will under moral laws are one and the same.”19 Thus, perhaps, defamation cannot become a universal law, since an agent might treat someone as a means only by making statements that demean her in the eyes of a group she considers important. However, this solution generates more problems than those it aims to solve. First, it is not evident that it covers every type defamation, since Kant might have not objected to “corrective” forms of defamation stemming from a genuine and reasoned disapproval of depravity. Second, the notion that only moral persons can be autonomous and vice versa is no longer convincing, once we refuse to endorse the questionable metaphysical doctrine that supports it. Third, the prospect of a legal system protecting only those forms of expression that enforce the Kantian moral law does not seem particularly attractive. Apart from its tone of legal moralism, it reduces the number of permissible categories of expression to a bare minimum. Are these solutions the only available options or there is a fourth more promising approach? In order to get a more complete picture it remains to be examined whether defamatory speech unjustifiably invades personal autonomy as it has been defined above. If this could be established, then we would have good grounds for imposing legal constraints on certain forms of defamatory speech. D. TOWARDS A PLAUSIBLE SOLUTION

We can start our inquiry with deceptive defamatory speech and explore its impact on the exercise of personal autonomy. Deceptive 18 This seems to be the variant of autonomy David A. Strauss defends in his “Persuasion, Autonomy, and Freedom of Expression”, Columbia Law Review 91 (1991), pp. 334–371. 19 The Moral Law: Kant’s Groundwork of the Metaphysics of Morals, translated and analysed by H.J. Paton (London: Hutchinson, 1953), p. 108.

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defamatory speech can be envisaged as a subcategory of mendacious speech. Lying and deception, in general, make people act or refrain from acting in ways they would not otherwise choose to. They deprive agents of the opportunity to examine certain courses of action they could have taken into account if they had known the truth. Suppose that a husband insincerely assures his wife that he always has been faithful to her, and she never learns the truth. The inflicted harm consists in denying her the chance to think of a divorce. This harm is not alleviated by the fact that she might have decided not to take any action, had her husband been truthful to her. What matters in autonomous choice is not the form it will finally take, but the conditions under which it is made; and these have been severely manipulated by the liar who is tampering with someone else’s beliefs. Lying also invades epistemic autonomy. Since being epistemically autonomous involves doing whatever possible to form true and justified beliefs, one is obviously harmed when, despite her efforts, she has false beliefs because someone else wanted it so. And this holds even if the agent would never think of revising her decisions or her present desires. In the above sense every lie constitutes an obstacle to the exercise of personal autonomy.20 By implication, the same holds for deceptive defamatory speech. Here, the libeller or the slanderer intends to convey to an audience a false negative image of her target. Members of the audience swayed by false defamatory assertions might start forming false beliefs or they might start acting in ways they would not have chosen in the absence of these assertions. And the targeted person might realise that she can no longer perform the actions she used to, that her options are unjustifiably limited or that her autonomy is severely impaired because of these assertions. Now, an imaginary court which is called upon to decide a case where false defamatory speech is involved, and which relies only on the autonomy rationale must first prove beyond reasonable doubt the falsity of the assertions in question. And any court slightly resembling actual courts is expected to concentrate on simple and specific ascertainable facts and to avoid passing judgement on the falsity of views and opinions about science, religion, history, society or philos20

I elaborate this argument in my Lying and Morality (in Greek) (Thessaloniki: Vanias, 1994), pp. 215–220.

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ophy. Then, it must establish whether the epistemic or the volitional autonomy of certain agents has been invaded. In the first case it should order a retraction. In the second case, apart from the retraction, it must order the defendant to offer some kind of additional compensation or reparation for the damage caused by her actions in order to restore, as far as it is possible, the status quo ante.21 Thomas Scanlon, one of the most ardent supporters of the autonomy rationale, disagrees with this view. He claims that agents causing false beliefs should not be held legally responsible, since the autonomous agent – who “sees himself as sovereign in deciding what to believe” – “could not allow the state to protect him against [these beliefs] through restrictions of expression”.22 However, given that none of us is ideally autonomous, most people do not have the resources, the time or the ability to scrutinise and to double-check every piece of information they receive. Unavoidably, certain sources have to be trusted and in a variety of cases individuals cannot discover the truth, no matter how hard they try. For these reasons the public should – within certain limits – be protected from liars including those who deliberately make false allegations in order to tarnish the reputation of others. When true and uncertain defamatory expressions are involved, our imaginary court has an easier task. Here, judges are required to assess only the consequences of defamatory speech using as a criterion the impairment of the autonomy of those affected by it.23 But in this context more needs to be said about the nature of this impairment. As we have already seen, the mere presence of unpleasant feelings does not justify legal intervention. The plaintiff must have suffered a 21

It should be noted that from the moral perspective that is adopted here it follows that when defamatory statements cause an irreversible loss of autonomy (i.e. when the victim commits suicide) should not only lead to the award of civil compensation but also become a matter for criminal prosecution. However, the determination of the exact nature of the offence of defamation cannot be discussed in abstracto but within a particular civil or common law system, and this falls beyond the scope of this essay. For a discussion of the legal implications of lying see Kent Greenawalt, Speech, Crime, and the Uses of Language (New York: Oxford University Press, 1989), ch. 7. 22 “A Theory of Freedom of Expression”, in R.M. Dworkin (ed.), The Philosophy of Law (Oxford: Oxford University Press, 1977), p. 162 and passim. 23 For a criticism of the view that true defamatory communications should be always permissible see Joel Feinberg, Freedom and Fulfilment: Philosophical Essays (Princeton: Princeton University Press, 1992), pp. 130–132.

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loss in her autonomy as a result of a defamatory assertion in the sense of being coerced to do things she wouldn’t have done in the normal course of events, or of being unduly prevented from performing significant acts of her choice. I will refer to certain characteristic cases which, of course, do not exhaust the whole range of possible autonomy infringements. Consider the following findings about the effects of racist speech: Victims of vicious hate propaganda experience psychological symptoms and emotional distress ranging from fear in the gut to rapid pulse rate and difficulty in breathing, posttraumatic stress disorder, hypertension, psychosis and suicide : : : To avoid receiving hate messages, victims have to quit jobs, forgo education, leave their homes, avoid certain public spaces, and otherwise modify their behaviour and demeanor.24

To be sure, most of these symptoms and consequences constitute illegitimate invasions of personal autonomy. They apply with equal force to cases in which no third party is aware of the words spoken out.25 Moreover, defamatory assertions can operate as “fighting words”, that is, in the US Supreme Court phraseology, words “which by their very utterance : : : tend to incite immediate breach of peace”.26 Potential addressees are likely to lose self-control, to respond forcibly and to start acting as heteronomous agents. Of course, ordinary autonomous individuals have to exercise selfrestraint, especially those whose profession exposes them to constant provocation. Nevertheless, there are occasions in which almost no one is expected to react in a calm and reasonable manner, when faced with certain challenges. Defaming someone can sometimes be similar to falsely shouting “fire” in a crowded theatre, and this is something that our imaginary court cannot fail to take into account. Finally, true defamatory communications that invade privacy also 24 Mari J. Matsuda et al., Words that Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder: Westview Press, 1993), p. 24. The same holds for hate speech focusing on sex, sexual orientation, state of health, place of birth, religion or ethnic origin. 25 It goes without saying that actual courts cannot find that someone has committed slander, when the plaintiff or the public prosecutor fail to present any witness or convincing evidence, but this does not alter the significance of the philosophical point made here. The important issue is to realise that defamation can impair autonomy, even if it involves only the slanderer and her victim. 26 Chaplinsky v. New Hampshire 315 US 568 (1942). See Kent Greenawalt, Fighting Words: Individuals, Communities, and Liberties of Speech (Princeton: Princeton University Press, 1995), pp. 50–53.

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constitute invasions of autonomy. Privacy is about our legitimate interest to enjoy a personal free from intrusions domain to which no one can have access without our consent. It is also about our legitimate interest to present the public image we wish on condition that we do not deceive people in some important sense. Respect of privacy secures our control over a significant part of our life, and allows us to adopt the lifestyle with which we are authentically identified and to determine our relations with others. Hence, if people start disclosing facts about ourselves we wish to keep secret, we do not just feel annoyed, but we suffer a more or less severe blow in the exercise of our autonomy.27 In all these cases (and in many more) to demand from someone to make reparations for the harm caused by her expressive decisions or to impose another sanction by no means amounts to holding her legally responsible for merely advocating ideas that need to be eradicated or for using “improper” and “forbidden” language. Are there any general criteria our court may apply in deciding whether there is a unjustifiable invasion of autonomy? I think that in individual libel or slander actions the relevant criterion is the victim’s ability to redress the damage done, if any, without the court’s aid.28 For instance, politicians and other public figures29 have effective means at their disposal for successfully responding to defamatory assertions concerning them. In certain cases no harm is inflicted on them and, eventually, they might be benefited by the commotion created. This, however, does not usually happen with non-public figures and in numerous occasions people need the court’s verdict to re-establish their reputation. Calling the prime minister “a God damned racketeer” is not on a par with describing the local vicar with the same words. 27

On the connection between autonomy and privacy see Sandra E. Marsall, “Public Bodies, Private Selves”, Journal of Applied Philosophy 5 (1988), pp. 147– 158 and Hyman Gross, “Privacy and Autonomy”, in Patricia Smith (ed.), The Nature and Process of Law: An Introduction to Legal Philosophy (New York: Oxford University Press, 1993), pp. 708–714. 28 This idea is brilliantly captured in the famous words of Justice Brandeis: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California 274 U.S. 357 (1927). 29 Here we refer to “all-purpose” and “vortex” public figures, but not to involuntary public figures. For this distinction see Holsinger, op. cit., pp. 145–157.

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In cases of group-libel or of non-individualised racial slurs the appropriate criterion is whether the group targeted is in a disadvantaged position. This is confirmed by the lesser standards of living its members enjoy compared to other groups or by the climate of hostility and informal discrimination prevailing against it. As Greenawalt remarks “[I]t is easier to be impervious to epithets when one is a member of a privileged majority than when one belongs to a marginalized minority.”30 Once again we realise that verbally attacking Muslims in Britain or Greece is not equivalent to attacking Muslims in Saudi Arabia. I do not wish to deny the difficulties an actual court might face in establishing a link between vilification of targeted groups and the encroachment of the autonomy of some (or all) of their members, but this is a possibility that cannot be discarded from the point of view we adopt here. At any rate, the aforementioned criteria are intended as general suggestions and not as specific guidelines that have to be implemented by actual courts without exceptions.31 At this stage one can raise the question about the significance for the autonomy-based approach of the – commonly invoked in relevant cases – criterion of reasonable avoidability. I take this criterion to mean that, if the plaintiff(s) could have easily avoided being exposed to defamatory messages, there is no case against the defendant. Here, a great deal of caution is needed. Could we apply it in the case of a citizen who has been the target of a relentless mudslinging campaign because she dared to question the propriety of the nationalistic policies of her government? Obviously not, since that would amount to validating the “heckler’s veto”. I can save myself 30

Greenawalt, Fighting Words, op. cit., 64 and passim. Similar points are made by Wojciech Sadurski, “Racial Vilification, Psychic Harm, and Affirmative Action”, in Freedom of Communication, op. cit., pp. 77–93. 31 Theorists, like Ronald Dworkin, in the wake of the Sullivan decision argue for a different criterion: “Anyone who claimed that he had been libelled would be required to prove that the defendant was malicious, and not just careless or unlucky, in publishing the information the plaintiff claimed was false.” (“The Coming Battles over Free Speech”, The New York Review of Books, June 11, 1992, 60.) Acting out of malice may be a reprehensible motive, but I cannot see how its presence is necessary for having an impairment of autonomy. Undoubtedly, most slanderers are malicious, but this is not something that should have an impact on the process of assessing the autonomy-orientated consequences of defamatory communications.

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from many embarrassing situations by reluctantly remaining silent or by refraining from acting in ways that matter to me, but this is like yielding to an indirect threat. Although this is my choice, it cannot be regarded as an autonomous one, since I do not approve of being forced to choose between being vilified and doing things I dislike or that are against my principles. On the contrary, this criterion can be invoked in cases in which it is obvious that the defamatory message was part of a private conversation (broadly understood) the plaintiff managed to monitor although she was not supposed to. There is something odd in spying upon my opponents in order to overhear a defamatory statement concerning me and then to bring suit for damages caused by this communication. On the contrary, no court is entitled to accept the claim that I should have found another school to avoid seeing the racist slogans written all over the place in my classroom. Let me now give two examples of the application of the autonomy rationale in actual cases. First, we could not justify the 1995 decision of a French court ordering Prof. Bernard Lewis, an American historian, to pay a symbolic fine of one French franc, because he contended that the Armenians invented the story of their genocide by the Turks. No court can decide such a controversial issue and the Armenian minority in France is not, to the best of my knowledge, subject to systematic oppression, victimisation or racial discrimination. Armenians might feel outraged or offended by this statement, but their autonomy is not so severely harmed as to warrant this sentence, no matter how lenient or symbolic it has been. Second, in the famous 1977 Skokie case, the march of an American Nazi group in that Jewish Chicago suburb could be banned only for reasons of time, place or manner. Since American Jews are not a disadvantaged minority, the Skokie authorities would have to prove – in a manner consistent with similar past decisions concerning ordinary demonstrations – that this march would seriously disturb the citizens’ (irrespective of ethnic origin or religion) everyday activities leaving them with a limited and undesirable range of options.32 The situ32

It should be noted that the Nazis were planning to use slogans like “Free Speech for the White Americans” that cannot be construed as “fighting words”. Cf. Norman Dorsen, “Is There a Right to Stop offensive Speech? The Case of the Nazis at Skokie”, in Larry Gostin (ed.), Civil Liberties in Conflict (London and New York, 1988), pp. 122–135, and Feinberg, Offence, op. cit., pp. 87–88.

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ation might have been different, if the target of the demonstration were the blacks, the Hispanics or the Indians, since now the negative impact it will have on their already insecure status could constitute one additional argument in favour of the prohibition. This account can be met with scepticism for various reasons, but there are, at least, two major criticisms that need to be accommodated. Traditional liberal supporters of free speech might express the worry that the model outlined requires the banning of novels like the Satanic Verses and of other works of art in case it could be shown that they affect negatively the autonomous agency of individuals belonging to disadvantaged minorities. However, these liberal worries can be easily assuaged. First, as argued above, mere offence does not warrant the suppression of expressive decisions, and artistic activity cannot be excepted. Second, no one can convincingly claim that she suffers a severe blow in the exercise of her autonomy because she has to refrain from purchasing a controversial novel or from visiting a cinema or an art gallery in order to prevent exposure to hate messages. Finally, even in the extreme case in which self-governed adults swayed by their reception of a certain work of art inaugurate a policy of discrimination against a vulnerable community, it is them that have to be held accountable and not their source of inspiration. This position gains in cogency if we take into consideration that, in contrast with its non-artistic counterpart, artistic expression cannot be deceptive, and suspension of disbelief and contextualization are among the factors making the difference. Thus, it follows that the only inference one can draw from the preceding analysis is that people should not be forced to take great pains to avoid contact with works of art of any kind they could find upsetting or offensive for any reason whatsoever. Admittedly, legislators will encounter difficulties in turning this rather abstract requirement into a workable set of legal provisions, but the aforementioned liberal fears seem no longer justified. In addition, the same liberals can criticise the scheme I am proposing by invoking an equally disturbing implication. It could be argued that, apart from defamation, our account condemns unfavourable fierce criticism, since it is not unlikely for a critical statement of this kind to impair autonomous thinking and acting. For instance, authors and actors might turn depressive or refuse to leave their home

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because of bad reviews they received. Should criticism warrant legal interference if it turns out to bring about effects like the above? This would be utterly unacceptable, since free criticism is not only the oxygen of a liberal polity, but it constitutes an indispensable means to the formation of authentic beliefs, desires and decisions. Thus, some qualifications are pertinent. A critical comment can be regarded as libellous if and only if it meets the following conditions: (a) it causes a severe impairment of autonomy and (b) it is expressed in carefully selected coarse and derogatory language that denies explicitly and in an indisputable manner the value the criticised individuals possess as autonomous and equal persons. Here we not only have the successful execution of a calculated assault on someone’s capacity for autonomous thinking and acting, but a serious and unjustifiable curtailment of the latter that takes place as a result of this assault.33 This calls for carefully circumscribed forms of legal intervention no reasonable liberal could reject. In conclusion, the upshot of this mostly theoretical discussion is that it is possible to defend in terms of a certain conception of the autonomy rationale a scheme for regulating defamatory speech (including group-libel) which does justice to the common understanding of its harmful implications, while at the same time respecting the uncompromising liberal responses to those who claim that offensive communications including unpopular and hateful ideas should be made unlawful. Department of Philosophy Aristotle University of Thessaloniki Greece GR 54006

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One can wonder if it is ever possible to increase someone’s potential for autonomous acting and thinking by defaming and humiliating her for that purpose. Some teachers, trainers and major-sergeants seem to have faith in the value of “pedagogical” insults, but these are of doubtful effectiveness and they are rejected by modern educational theories. Perhaps, they might be of some use in certain forms of psychotherapy.