FREEDOM OF SPEECH. Alon Harel. Part I. Freedom of speech is among the most cherished constitutional rights in liberal democracies. It is entrenched in most ...
FREEDOM OF SPEECH Alon Harel
Part I Freedom of speech is among the most cherished constitutional rights in liberal democracies. It is entrenched in most contemporary constitutions as well as in international human rights treaties. It is often classified as a “first generation right” – a right protecting individuals from interference by the state. It is understood to be foundational to liberal polities either in the sense that it is a precondition to the existence of a liberal polity and/or that it is tightly related to liberal values such as autonomy, dignity and liberty. At the same time, the scope of what constitutes speech, what speech ought to be protected, the weight or the value attributed to the protection of speech vis-à-vis other rights or policy concerns, and the reasons underlying its protection are highly controversial. These controversies have important political and legal implications and they are reflected in the differential protection granted to speech in different jurisdictions. The primary philosophical challenge is to explain why (and whether) speech ought to be protected more (or differently) than non-speech activities. When we protect speech we privilege speech relative to non-speech activities. The normative debate concerning the justifications for protecting speech also sheds light on what counts as speech. Only communicative action that at least potentially promotes the values underlying the protection of speech counts as speech. Consequently, identifying the values underlying the protection of speech also influences what activities count as “speech.” Thus, at least in legal discourse, the question of what counts as speech and what counts as protected speech are often interrelated. To address the normative question of why speech is protected as well as to identify what counts as speech we examine below in Part II four major theories purporting to justify the
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protection of speech: the marketplace of ideas, the autonomy-based theory, the selfrealization and the democratic justifications. We establish that none of these theories alone can justify the protection of speech as is currently practiced in contemporary liberal polities. In recent years many feminists and ethnic or religious minorities have challenged the protection of certain forms of speech. More particularly it was claimed that certain forms of speech either conflict with other rights, e.g., equality, or even may deprive minorities of the capacity or ability to exercise effectively their own right to free speech (the silencing argument). It is the task of Part III to explore some of the minoritarian challenges to what constitutes speech and what constitutes protected speech. Some radical critics of liberalism challenge the importance and significance of freedom of speech as such. They maintain that freedom of speech masks large-scale silencing and repression. “Repressive tolerance,” as it is sometimes labeled, is a radical position that rejects central, traditional, liberal political rights in the name of values such as autonomy and equality and regards the liberal protection of speech (independently of its content or merit) as a repressive mechanism designed to strangle rather than facilitate genuine public deliberation. These challenges will be examined in Part IV. We conclude by pointing out that the three positions described below (liberalism, minoritarian critics of liberalism and radical critics of liberalism) share similar assumptions and values. To the extent that minoritarian and radical critics of liberalism advocate restrictions of speech, they do so by invoking the very same values advocated by liberals: autonomy, dignity and equality.
Part II: Rationales for protecting speech The scope of what the right to free speech includes is of course controversial. Often the scope of what constitutes “speech” is influenced by normative considerations. Yet, it is evident that the term “speech” is much too narrow to describe all the activities that are traditionally
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covered by the right to free speech. As Schauer noted: “What is ‘speech’ in ordinary usage is not necessarily what is ‘speech’ for purposes of the concept of free speech” (Schauer 1982: 13). Waving a flag, wearing a button with political symbols and producing a movie are also protected by the right to free speech. In contrast, there are activities that are clearly speech (in the ordinary sense of the word) that are not protected by the right to free speech, such as hiring somebody to commit murder. Often the right to free speech protects communicative activity – namely activity that conveys ideas, expresses emotions or sentiments, or conveys or evinces attitudes. Yet not all communicative activity is protected; physically attacking a person as an expression of hatred is not covered by the right to free speech even if it is a communicative activity. The standard view is that free speech differs from a principle of general liberty. The protections granted to speech are far greater than the protection of activities that are not classified as speech (Schauer 1982: 7–8; Greenawalt 1989a: 120). This does not imply that the protection of speech is absolute; most advocates of protecting speech concede that urgent considerations often override the concern for protecting speech. Yet concerns which justify limitations on speech ought to be more urgent, more weighty or different in kind than concerns justifying the limitations of most other liberties. The question is, therefore, why speech should have greater protection compared with other types of activities that may be just as important and value enhancing as non-speech activities. The special protection of speech is part of a more general phenomenon characterizing many rights; rights protect certain forms of behavior, e.g., speech, religion, equality, etc. They provide, therefore, differential protection to different activities. One of the great challenges of a theory of rights in general and a theory justifying the protection of any particular right is to explain the reasons underlying the differential protection of activities, all of which seem to produce similar benefits and generate similar harms. In the context of
speech, we can ask why should speech and non-speech activities which are equally autonomy enhancing (or, more generally, equally value enhancing) be protected differentially (Harel 2005)? We shall address this question at the end of this section. The rest of this section is devoted to explaining the rationales justifying the protection of speech. The traditional justifications for protecting speech fall into two categories. Under the first category, speech is protected in order to shield an individual from restrictions even when such restrictions would be conducive to welfare. Dignity-based and autonomy-based concerns fall into this category; their advocates often maintain that speech ought to be protected even when its protection is detrimental to important societal values. Under the second category, protecting speech is justified because in the long run it is conducive to social welfare. The claim that protecting speech is conducive to the discovery of truth is an influential example of a justification of the second category; it is founded on the conjecture that protection of speech is conducive to the society as a whole. Note that this difference in the type of justification has important ramifications. The first camp (the deontological camp) is typically less willing to conduct “balancing” of speech concerns with other non-speech concerns. In contrast, the second camp (the consequentialist camp) regards the protection of speech as a means to promote social welfare. It follows that speech, which is not conducive to social welfare, deserves no protection (Nagel 1995: 86–89). Let us examine, therefore, four main justifications used in the literature: the marketplace of ideas, the autonomy-based argument, the self-realization argument and the democracy argument. Note that these justifications are only a subset of the potential justifications for rights-based protection of speech and that the categorization provided here is not the only categorization provided in the literature. Furthermore, like many classifications, there are arguments that can fall into more than one category.
The marketplace of ideas Under the conventional marketplace of ideas argument, the protection of speech is conducive in the long run to the discovery of truth. It is evident that this argument is not an individualistic argument based on either the rights of the speaker to speak his mind or the right of the audience to benefit from the speech. Instead, it is based on long-term societal benefits resulting from the protection of speech. Speech has an instrumental value in promoting truth and promoting truth is socially valuable. One of the earliest attempts to justify the protection of speech dates back to the seventeenth century. John Milton argued that:
[T]hough all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the worse, in a free and open encounter? (Milton 1644)
But why should truth and falsehood grapple with each other? Why should not we simply censor falsehood and thus guarantee the victory of truth? Why is the victory of truth guaranteed? A philosophically sophisticated version of the argument was developed by John Stuart Mill who identified three distinct claims (Mill 1859). In Mill’s view: 1) if a censored opinion contains truth, its silencing is damaging as it lessens the probability that truth be revealed. In his view: “complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth”; 2) if conflicting opinions each contain some truth, the clash between them is the only method of discovering what the truth is; and 3) even if the opinion has no truth in it, challenging the accepted position contributes to its vitality and decreases the chances that it degenerates into a prejudice or dogma. Mill
famously contrasted “dead dogma” with “living truth” and he maintained that: “Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, then by the true opinions of those who only hold them because they do not suffer themselves to think” (1859). Mill’s view has been immensely influential; it has been endorsed by courts and by numerous legal theorists (Ingber 1984). In a dissenting opinion that later became orthodoxy in the United States, Justice Oliver Wendell Holmes Jr. argued that: “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Abrams v. U.S. (1919) 250 U.S. 616). The claim that robust discussion is conducive the discovery of truth has a particular appeal in the Anglo-American world and it has been analogized to the traditional justification for the adversary system based on cross-examination (Schauer 1982: 16). Ironically, the economists who first identified the virtues of the marketplace of commodities were quick to point out the paradoxical nature of this analogy. Ronald Coase asked the following question: if indeed the protection of freedom of speech is grounded in the marketplace of ideas, why is speech so much more protected than the marketplace of commodities? His answer was cynical: “The market for ideas is the market in which the intellectual conducts his trade. The explanation of the paradox is self-interest and self-esteem. Self-esteem leads the intellectuals to magnify the importance of their own market...But selfinterest combines with self-esteem to ensure that, while others are regulated, regulation should not apply to them” (Coase 1974: 386; Coase 1977: 1). Coase also pointed out that perhaps the real motive for protection of freedom of speech is not the keen interest in truth but the fact that “the public is commonly more interested in the struggle between truth and falsehood than it is in truth itself” (Coase 1974: 391).
Even if one ultimately rejects Coase’s cynical explanation for the special protection of speech on grounds of self-interest and self-esteem of intellectuals, the differential treatment of speech on the one hand and commodities on the other hand is a challenge to the advocates of this argument. The marketplace of ideas clearly increases the chances of “true ideas” to appear in the market of ideas, but it also increases the spread of false ideas (Schauer 1982: 28; Ingber 1984: 7). The famous assertion that false speech should be countered by “more speech, not enforced silence” is based on an empirical generalization that truth has greater chances of winning in the marketplace of ideas. Mill himself concedes that truth does not prevail if persecuted and says that: “It is a piece of idle sentimentality that truth, merely as truth, has any inherent power denied to error of prevailing against the dungeon and the stake” (1859). Yet the same argument ought to be extended to the case in which truth is not persecuted; the premise that freedom of speech leads on the whole to the discovery of truth is not more than an unsubstantiated conjecture (Ingber 1984; Schauer 1982: 28; Barendt 2005: 9). It has also been argued correctly that the so-called marketplace of ideas is not open to everyone who wants to communicate her ideas (Barendt 2005: 12). Disparities of power and money may have destructive influence on the robustness of public discourse. Furthermore, even if protecting speech is conducive to truth, it is not clear that truth is always or even typically desirable. Often the regulation of speech is based on arguments of public policy that have nothing to do with truth or falsehood (Schauer 1982: 22–23). A true expression such as publication of a criminal record of a defendant may undermine her prospects for a fair trial. True expressions may violate privacy, undermine stability and lead to violence. Some theorists also have pointed out that the argument from truth presupposes a process of rational thinking and, consequently, the less rational individuals are, the less forceful the theory is (Schauer 1982: 30; Ingber 1984: 15; Baker 1982: 14). Most skeptical of all have been those
who have argued against the claim that truth is objective and maintain that truth is being created rather than discovered (Baker 1989: 13). Yet despite these evident difficulties there are less ambitious arguments based on the marketplace of ideas that have merit. Mill was right that challenging even true ideas increases the vitality and potency of these ideas. Furthermore, as Mill himself noticed, challenging even true ideas is conducive to the very critical capacity to scrutinize ideas and, therefore, in the long run, may be as conducive to truth as it is conducive to the development of the critical deliberative tools necessary to evaluate truth and falsehood. Under this understanding, free speech is conducive to truth because it is conducive to the development of intellectual virtues that, in turn, are instrumental to truth. Furthermore, the claim that free speech is conducive to intellectual virtues may support the protection of speech even if the development of such virtues is not conducive to truth, as it seems that the perfection of intellectual virtues is valuable independently of whether such perfection is conducive to truth.
The autonomy-based argument The autonomy-based argument is only one of several characteristically liberal arguments made in favor of protecting speech. These arguments include arguments from dignity, diversity and autonomy (Schauer 1982: 60–72). It is to be emphasized that the autonomybased argument is in effect a family of arguments. One theorist identified six distinctive meanings of autonomy that are used in defending the right to free speech (Briston 1998). We will examine here only two distinct autonomy-based justifications: one based on a negative conception of autonomy and another based on a positive conception of autonomy. Under the negative concept of autonomy, autonomy is designed to protect individuals from outside control of the state and to maintain a personal space for the individuals; in contrast the positive conception is designed to guarantee the actual exercise of autonomy. It is not merely
the protection from outside or external interference which counts as autonomy-enhancing but the actual, active exercise of one’s deliberative powers. Under the justification based on a negative conception of autonomy, speech is a private domain – an area that is under the exclusive control of the individual. Often this argument is based on the view that protection of rights has intrinsic rather than instrumental value (Nagel 1995: 86). The right to free speech is, under this view, a fundamental and nonderivative element of morality. Thomas Scanlon developed the most sophisticated version of this argument. In Scanlon’s view: “To regard himself as autonomous a person must see himself as sovereign in deciding what to believe and in weighing competing reasons for action…An autonomous person cannot accept without independent consideration the judgment of others as to what he should believe or what he should do” (Scanlon 1972: 215– 16). A similar reference to sovereignty of the person is made by Nagel who argues that: “The sovereignty of each person’s reason over his own beliefs and values requires that he be permitted to express them…it also requires that he not be protected against exposure to view or arguments that might influence him in ways others deem pernicious.” (Nagel 1985: 96) In both cases what is at stake is the view of persons as autonomous agents, and autonomy is identified with what can be labeled sovereignty – immunity from certain forms of external control. An individual is sovereign if she does not accept without questioning the judgments of others. Scanlon rejects the instrumental arguments for protecting speech (based on societal well-being) and adopts instead a noninstrumental, non-consequentialist, highly individualistic approach. If speech is to be protected solely on the basis of controversial, empirical claims about its long-term positive effects or the negative effects of restrictions, then the free speech principle is vulnerable to empirical challenges and subject to contingent factors concerning its expected societal effects (Scanlon 1972: 205).
Scanlon starts his discussion with a very important and seemingly paradoxical observation. The right to free speech does not target restrictions on speech as such but only restrictions that are grounded in certain justifications for these restrictions. Particularly pernicious are restrictions that are based on the risk that the views communicated were to be believed or acted upon (Scanlon 1972: 209). Compare for instance restricting the dissemination of information as to how to make nerve gas in the kitchen to a restriction of a particularly effective piece of political propaganda that may lead to schism and bloody civil war. Both restrictions are designed to promote the public good and the harms resulting from the speech in both cases could be similar. Yet it is the second restriction that seems problematic. This is because the speech restricted in the second case is one that promulgates what the speaker takes to be good reasons for action, while in the first case it merely provides individuals with the means to do what they want to do anyhow (Scanlon 1972: 211–212). Similarly, if someone urges me to commit violence the choice to commit violence is ultimately mine: “The contribution to the genesis of [the] action made by the act of expression is, so to speak, superseded by the agent’s own judgment” (Scanlon 1972: 212). These observations led Scanlon to articulate what he labels the Millian principle that consists of two sub-principles. Restrictions of speech could not be justified on the grounds that a) the speech harms those who come as a result of it to have false beliefs; or b) the speech harms people as a result of harmful acts committed as a result of the fact that the act of expression leads agents to believe (or increased their tendency to believe) these acts are worth performing. Scanlon also shows that his analysis can account for famous exceptions to the protection of speech. Scanlon himself recognized some of the limitations of the Millian principle. First, the Millian principle is under-inclusive; restricting all speech for the sake of saving resources necessary for protecting speakers is consistent with the Millian principle as the restriction is
not justified on grounds that are prohibited under the Millian principle. Second, the Millian principle is over-restrictive as there are clearly justified restrictions that violate the Millian principle, such as restrictions on speech that create “clear and present danger” (Schenck v. United States (1919) 249 U.S. 47). For instance, a speaker who urges his audience to condemn all homosexuals as they are morally depraved may under certain circumstances create clear and present danger (because the audience may act upon the belief that homosexuals are evil). Hence, such speech may fall within the scope of the second part of the Millian principle: the speech harms people as a result of harmful acts (of violence) committed as a result of the fact that the act of expression leads agents to form beliefs (concerning the moral depravity of homosexuals). As to the problem of under-inclusiveness, Scanlon maintains that the protection of speech may be grounded in different justifications; he does not argue therefore that the Millian principle is the exclusive justification for the protection of speech. As to the problem of over-inclusiveness, Scanlon concedes that the Millian principle is not an absolute principle; it may be defeated by conflicting considerations. Yet opponents of the Millian principle exposed additional theoretical weaknesses. For example, why could not autonomous persons agree “to foreclose some inputs for them which they would ideally like to have in some situations” (Greenwalt 1989: 115)? If people are autonomous should not they also be free to bar the dissemination of ideas that they know (or judge) are dangerous (Barendt 2005: 17; Briston 1998: 329)? Under this view, our moral dignity dictates to respect not only our judgments concerning what is right or wrong but also our judgments concerning what the best circumstances for deliberating about right and wrong are. Why should our second-order judgments (concerning what the best preconditions for deliberation on right and wrong are) deserve less protection than our first-order judgments concerning what is right and wrong?
Scanlon himself later developed the most effective critique of the negative view of autonomy based on a positive conception of autonomy (Scanlon 1979). Scanlon distinguishes sharply between autonomy as a constraint on justifications for authority (based on the moral agency of persons) and moral autonomy understood as the actual ability to exercise independent rational judgments (Scanlon 1979: 533). The exercise of such judgments hinges on an environment that is conducive to the making of such judgments. Under this view, the protection of autonomy may even justify restrictions on speech as the exercise of the right to free speech presupposes an environment which is conducive to deliberation and some forms of speech are detrimental to the exercise of such a right. What really counts is the fostering of an environment that is conducive to rational deliberation (Barendt 2005: 17). While this view is clearly more open to abuse, it is much more realistic in that it takes seriously the realities of deliberation in the society and, in particular, the fact that autonomy is not a natural pre-given product; it develops in societies which maintain certain practices and are guided by certain values (Taylor 1985). Hence, ironically, as we show below in Part III, restrictions on speech could be grounded in the need to foster autonomy and even to facilitate and perpetuate the capacity to exercise the right to free speech. As certain forms of speech, e.g., pornography and racist speech hinder, exclude and silence women and minorities, restricting such forms of speech may be conducive to the very protection of the right to free speech. Some advocates of a positive conception of autonomy emphasize the fact that diversity of speech is a public rather than an individual good which is designed to facilitate “public portrayal and expression of forms of life” which “validates the styles of life portrayed” (Raz 199: 153). The existence of “forms of life” is under this view a precondition for individual autonomy. Being Christian, Jewish or atheist has social meanings and such meanings are essential for these forms of life to promote individual autonomy. Freedom of speech is designed to “familiarize the public at large with ways of life”; to “reassure those
whose ways of life are being portrayed that they are not alone, that their problems are common problems, that their experiences known to others;” and they serve as validation of the relevant ways of life…” and “give them the stamp of public acceptability” (Raz 1994: 155). Raz further maintains that it is often essential to validate one’s own form of life by rejecting other forms of life. Hence he believes that even if religious condemnation of homosexuality may be wrong it is part of a form of life that ought to be tolerated. This is because “disagreement, condemnation and even hostility to certain aspects of rival ways of life is an essential element of each way of life” (Raz 1994: 166). This compelling justification suffers however from the difficulties pointed out above. Negative portrayals of rival forms of life may indeed be constitutive to one’s own form of life, but they may also be destructive to those whose forms of life are negatively portrayed. This is true in particular when those whose forms of life are negatively portrayed are vulnerable and, consequently, cannot lead their lives without the approval or cooperation of those who condemn their way of life. Gays belonging to a religious community or women in a traditional Islamic or Jewish community are dependent upon their community psychologically and economically and yet they may find that their preferred way of life is being marginalized. The positive understanding of autonomy deviates sharply in its recommendations from the negative understanding of autonomy. Yet its implementation in practice raises grave difficulties, as it is open to manipulation and abuse. What a fertile environment for autonomy should consist of is notoriously vague and such determinations have to be based on empirical generalizations that are highly controversial. Most significantly, the positive conception of autonomy is sometimes closer to the instrumental consequentialist justifications; its advocates often regard the protection of speech as well as its regulation as a means designed to bring about a more robust social and political discourse. Lastly, some theorists raised a
general concern about autonomy (both negative and positive) and argued that autonomy cannot justify the right to free speech. Under their view, autonomy is a sectarian value (Cohen, 1993 222). It is a value that characterizes liberal forms of life but is not shared by others. The justification for protecting speech ought to appeal not only to liberals; it ought to address even those who reject autonomy as a central political value.
The self-realization/self-growth/self-fulfillment argument Positive autonomy is similar to another influential justification for free speech that takes many different forms. Under this view, the protection of speech is congenial to the selfdevelopment and self-perfection of individuals. This view is based on a certain vision of human beings as striving towards improvement and growth. It is understood by some theorists to be rooted in Aristotelian conceptions of good life (Schauer 1982: 49). Most significantly it maintains that by exercising the right to free speech, individuals “instantiate or reflect what it is to be human” (Barendt 2005: 13). The self-growth/self-fulfillment argument could be interpreted either as an individualistic non-consequentialist argument or as a consequentialist argument. Under the first interpretation, a person has a right to self-growth/self-fulfillment even at the expense of other important societal values (including perhaps the value of maximizing the aggregate self-fulfillment of individuals in the society). Under the second interpretation, the protection of free speech is designed to facilitate, sustain or even maximize self-growth/self-fulfillment of individuals in the society. Opponents of this argument have pointed out that it is difficult to see why free speech is more fundamental to self-growth and self-fulfillment than other liberties. After all, other non-speech activities are as essential to self-growth and self-fulfillment as much as speech (Barendt 1982: 13) My decision to walk naked in the city of Jerusalem may be as self-
fulfilling and as essential to self-growth as verbal advocacy of nudism highlighting its spiritual and liberating significance. Yet the former decision is not protected while the latter decision is. In fact, it seems that this view gives too great an emphasis to some forms of selffulfillment, namely intellectual self-fulfillment at the expense of other forms of selffulfillment. It therefore is subject to the concerns raised by Coase that the special privileging of speech in our society is biased towards the interests of intellectuals at the expense of the interest of other groups. Furthermore, it is doubtful that all forms of speech, which are currently protected, are indeed congenial to self-development/self-fulfillment. One of the most famous and most celebrated cases of free speech is the decision to protect the Nazi march in Skokie, Illinois (a municipality populated by the Jewish victims of the Holocaust). It does not seem that this march is conducive to self-fulfillment of the victims; if anything these people are more likely to be intimidated by the march. It is also questionable whether the march contributes to the self-growth/self-fulfillment of the participants in the march. After all, self-growth is a normative concept which presupposes striving towards improvement and perfection. To the extent that self-growth and self-fulfillment differ from merely satisfying one’s preferences, namely that it is a concept founded on a normative ideal, the speech of the Nazi protesters fails even to contribute to the Nazis’ own self-growth.
The democratic defense of free speech Among the classical justifications for free speech is the claim that free speech is a prerequisite for democracy. As the very concept of democracy is controversial, it is to be expected that there are several different democracy-based arguments for free speech. Is democracy valuable as a procedural method on grounds of fairness or equality? Or is it based on the greater likelihood of desirable decisions to emerge from a democratic process? If it is
the former, the desirability of free speech need not hinge on its quality or its expected consequences. If it is the latter, then what counts is rational or deliberative participation (that is more likely to result in good or desirable decisions) and the scope of the protection of speech ought to reflect this concern. A primary advocate of the democratic justification is Meiklejohn, who develops his position as a theory of interpretation of the United States Constitution (Meiklejohn 1948). In his view, the democratic defense of free speech is based on the necessity to make all information available to the sovereign electorate. As the people need to make decisions, they ought to be provided with the information necessary to make such decisions. Restricting speech is therefore detrimental to the democratic process, as it undermines the ability of individuals to reason politically. Furthermore, freedom of speech seems to rely on the perception that politicians are servants rather than masters. Freedom of speech is necessary to communicate the electorate’s wishes to the government and thus to guarantee accountability on the part of the government (Schauer 1982: 37–39). It follows also that freedom of speech is essential to supervising and monitoring the politicians. Politicians who are subjected to the power of popular opinion are more likely to react to the pressure of public opinion and decide in accordance with the interests of the electorate. Amartya Sen has shown for instance that: “A free press and an active political opposition constitute the best early-warning system a country threatened by famines can have” (Sen 1999: 181). The democratic justification as articulated by Meiklejohn was limited to political speech. It is not always easy to identify what political speech is. Arguably, it may be identified in two radically different ways. Under the first, political speech is defined on the basis of the intentions of the speakers while under the latter it is defined on the basis of its consequences (Scanlon 1979: 538). If political speech is defined on the basis of its consequences the scope of political speech may be much broader, as speech that is not aimed
by the speaker to be political influences society and its politics by changing social values and social mores. Feminists, for instance, have emphasized the fact that pornography ought to be understood as political speech (even though it is not intended as such), as it influences and shapes the views and images of women and men in the society. Despite these potential extensions, the democratic argument is limited as it is applicable only to political speech. Defending the protection of artistic or scientific speech requires, therefore, separate justifications (Barendt 2005: 18–19). Some may argue that differentiating between political speech and other categories of speech is undesirable in that it overemphasizes the significance of the political sphere at the expense of other spheres of activity. Furthermore, as Schauer points out, the use of such an argument is paradoxical, as a democracy could in fact justify restrictions of speech if these restrictions were supported by the public (Schauer 1982: 41). Such an argument could be rebutted on the grounds that democracy is not a mere empty procedure. The will of the people is valuable only because it is based on information, as reasoned deliberation must be founded on such information. Yet it is not always true that providing more information is in fact congenial to the conducting of reasoned deliberation and the making of rational decisions. This naïve assumption ignores not only common sense and historical experience but also the vast contemporary literature of behavioral economics indicating that information often is detrimental to the making of reasoned decisions. It also ignores the huge disparities of power that often distort the political process. Would not some limitations on the power of the rich and powerful to speak bring about much better and more deliberative democratic discourse than the one that characterizes contemporary western democracies? To illustrate the great significance of this question it is sufficient to point out the heated controversy over campaign finance in the United States. Those who wish to
restrict campaign finance point out the disproportional and distorting influence of large corporations on the political process. These concerns are reminiscent of a familiar dilemma: either the democracy argument values the pure procedural aspects of democracy or it is grounded in other, nonprocedural considerations. If only procedure matters, one may justify the protection of the right to free speech, but it is unclear why such a procedure is so valuable. Alternatively it may be based on the conviction that reasoned deliberation has value either in itself or on the basis of the contribution of democratic procedures to the making of the right, correct or desirable decisions. In such a case, it is easier to justify the compelling appeal of the goal – the securing of institutions that are conducive to reasoned deliberation. It is, however, more difficult to establish why protecting speech is conducive to the realization of this goal. It is not necessarily the case that all forms of speech are conducive to reasoned deliberation. An attempt to develop a new democratic justification for protecting speech can be found in the concept of “democratic culture” (Balkin 2004). Under this view, in the era of the Internet there is a practical opportunity to shift the meaning of democracy from the traditional understanding of democracy as concerned with the integrity of the democratic process to a broader and more diffused understanding of democracy as providing an equal opportunity to participate in the creation of culture. Freedom of speech “allows ordinary people to participate freely in the spread of ideas and in the creation of meanings that, in turn, help constitute them as persons” (Balkin 2004: 3). This understanding of the concept of democracy (equated with the equal opportunity to participate in culture creation) distances one from the more narrowly understood political meaning of the term “democracy”; it fits better the self-realization/self-growth/self-fulfillment argument analyzed above and is subject to the concerns raised there.
The paradox of the right to free speech: a tentative resolution We have surveyed some of the most influential arguments favoring the protection of speech. While each one of the justifications has its strengths and weaknesses, they all are subject to a challenge that is quite familiar in the discourse of rights. Rights, it is often argued, are grounded in values, e.g., autonomy, self-realization, self-fulfillment. We have seen that most if not all justifications for free speech are grounded in such values. But if this is the case, why should we protect the rights rather than the values underlying the rights? For instance, if the protection of speech is grounded in autonomy, why do our constitutions and bills of rights protect speech rather than all autonomy-enhancing activities? Or if it is grounded in selfrealization, why do we not protect all activities which are conducive to self-realization? One natural answer is pragmatic. As the promotion of the values underlying rights is so manipulative and open to abuse, we need to make more particular rules that are designed to limit and constrain our institutions. In the context of free speech it is often argued that governments are untrustworthy and are particularly disposed to regulate speech for bad rather than good reasons (Barendt 1982: 21–23). Under this view, our rights (including the right to free speech) do not reflect an underlying moral reality, namely the particularly great value of the activities or goods protected by rights; they merely reflect institutional and pragmatic considerations. We protect the right to free speech (and not all autonomy-enhancing activities) because legislatures and executives are likely to restrict speech (but not other autonomy-enhancing activities) for the wrong reasons and in a wrong way. Another suggestion to resolve the paradox is to identify values that can only be promoted by protecting the relevant right at stake. Thus, in the context of speech, Joshua Cohen tried to identify what he believes are distinctively expressive interests – interests which can be promoted only by protecting speech (Cohen 1993, 225-230). Yet the attempt to identify interests that are unique to expression is artificial. It seems that expression is tied up
with values that can often be promoted not only by speech but also by other values. Thus for instance Cohen identifies the interest of addressing “a matter of political justice.” But addressing such a matter can be achieved in ways other than speech, e.g., by participating in what one regards as one’s civic duties. The two attempts described above to resolve the paradox – the pragmatic defense and the claim that there are distinctively expressive values – fail. Fortunately there is an alternative view, under which the primary justification for protecting the right to free speech (rather than all autonomy-enhancing activities) is that the enhancement of autonomy depends on societal conventions of protecting certain practices for the sake of enhancing autonomy. In societies in which speech is protected for the sake of autonomy, people use speech in autonomy-enhancing ways. There is thus a close dependence between the values underlying rights and the activities protected by rights, such that protecting a defined set of activities for the sake of enhancing autonomy facilitates the exercise of autonomy. Promoting and reinforcing autonomy must take concrete form, i.e., it must be grounded in identifying and protecting activities that are autonomy enhancing. The values cannot be protected in abstract without delineating the activities whose protection is necessary for their realization. Identifying what the autonomy-enhancing activities are has an educational and constitutive role in facilitating the exercise of autonomy. Rights, including the right to free speech, are not redundant and the value of their protection is not reducible to the values underlying these rights (Harel 2005). Autonomy cannot even in principle be promoted without protecting certain well-defined autonomy-enhancing activities, e.g., speech.
Part III: Minoritarian challenges In recent years, the most effective theoretical challenges to the protection of speech have been minoritarian challenges based on the claim that pornography and hate speech directed
against minority groups (such as racial minorities, sexual minorities) are detrimental to the vital interests of minorities. The challenges can be divided into two types: extrinsic concerns and intrinsic concerns. The former minoritarian concerns point out that protection of speech is often detrimental to (non-speech) vital conflicting interests or rights of minorities and that protecting effectively those interests or rights requires the censoring of some forms of speech. Thus it has been argued that protecting racist speech is detrimental to equality and that sometimes equality should override the free-speech concerns. The intrinsic concerns are based on a more nuanced understanding of what speech consists of; they are based on the view that a genuine protection of freedom of speech sometimes requires the imposition of limitations on speech as certain forms of speech silence minorities and prevent them from either being able to exercise their own right to free speech or prevent their speech from being heard. The forceful metaphor of “silencing” is often used to convey these claims and the conclusion is that freedom of speech itself is enhanced rather than curtailed by imposing some restrictions on speech. Many of the minoritarian challenges were designed explicitly as practical challenges aimed at transforming the law and, in particular, the stringent protection granted to speech under the First Amendment of the U.S. Constitution. This practical concern is often detrimental to the philosophical concerns as minoritarian challenges are grounded in the need to address the nuances of American constitutional law. Hence, they are not always congenial for the purposes of theoretical investigation. Yet some of the minoritarian challenges are philosophically important, as they expose some of the ambiguities concerning the scope and the meaning of the right to free speech as well as rights in general. What is the scope of speech and what forms of speech are also acts? Should the right to free speech be designed such that it maximizes the exercise of the right, i.e., protects and promotes an environment that is conducive to the exercise of such a right? Should it take into account distributive
justice considerations, namely give priority to the speech of vulnerable groups whose speech is less often heard, at the expense of less vulnerable groups? Should it guarantee not only the right to free speech but also provide opportunities for the speech to be heard? As much of the sophisticated work addressing these issues has been done in the context of pornography, our examination will focus on this work. Yet the arguments are applicable to other forms of speech, e.g., racist speech. The following sections examine the claims that pornography is not (only) speech but (also) an act, and that pornography silences and, consequently, that regulating it promotes rather than curtails the protection of speech.
Is pornography speech? Feminists have long argued that pornography reinforces and perpetuates violence, sexual harassment and discrimination against women. Yet this view does not distinguish pornography from other forms of protected speech that may contribute to violence and discrimination. To address this objection, Catherine MacKinnon and Andrea Dworkin maintain that pornography ought not to be classified (exclusively) as speech but (also or primarily) as an act (MacKinnon 1987: 148, 154; A. Dworkin 1991). Pornography does not simply depict subordination of women; it is an act of subordination! In their famous antipornography ordinance that was passed by the Indianapolis City Council in 1984 (but later overturned on appeal on the grounds that it violated the right to free speech of pornographers), pornography was defined as: “the graphic sexually explicit subordination of women in pictures or words.” Sexually explicit materials need not necessarily subordinate and in fact they may even be congenial to gender equality. This definition differs from the traditional definition under which pornography is identified with sexually explicit materials or, more narrowly, as sexually explicit materials that are designed to produce sexual arousal. In fact, some feminists want to extend the definition of pornography even to materials that
are not sexually explicit. These claims may raise the suspicion that the debate about pornography is merely semantic; the two camps simply use the term “pornography” to denote different things. This suspicion is misleading. Some theorists maintain that sexually explicit materials (including materials that depict subordination of women) do not and in fact cannot subordinate. Under this view one ought to distinguish sharply between depictions of subordination (which may also perpetuate subordination) and acts of subordination; between fiction and reality. In his famous judgment striking down the Indianapolis ordinance, Judge Frank H. Easterbrook acknowledged that pornography depicts subordination of women and, furthermore, that such depictions “tend to perpetuate subordination” (American Booksellers v. Hudnut (1985) 771 F.2d 323 (7th Cir. 1985): 329). Yet it does not follow that pornography subordinates. The feminist challenge is to establish what it is in pornography that turns it from speech that simply depicts subordination and perpetuates it into speech that subordinates. Feminist philosophers defended the claim that pornography is an act of subordination (and not merely depiction of subordination) by using the famous J. L. Austin speech act theory. Under this theory, words are often used not to depict (truly or falsely) some states of affairs but rather to perform acts in the world including warning, promising and marrying (Hornsby 1995: 223–225; Langton 2009: 27–28). Austin famously distinguished between three types of acts that can be performed by speech (speech acts): locutionary acts, perlocutionary acts and illocutionary acts. Locutionary acts are indeed mere descriptions. Perlocutionary acts are speech acts that change or affect the world, e.g., in the case of pornography it is claimed that pornography causes the perpetuation of subordination or discrimination. Illocutionary speech acts can do things in the world. Thus, for instance, the utterance “I promise to meet you for lunch” may under the proper circumstances constitute a
promise and the declaration “I hereby pronounce you husband and wife” may under the proper circumstances constitute marriage. Hornsby and Langton suggest that pornography is an illocutionary act of subordination. Precisely as the words “I promise” do not merely depict a promise but also (under the proper “felicity conditions”) constitute the act of promising, so pornography is not merely a depiction of subordination but also an act that subordinates women. To support the claim, Langton (following MacKinnon) provides a list of other speech acts that subordinate, such as the utterance “whites only” uttered by an official in South Africa during the apartheid. Langton suggests that speech acts that subordinate fall into two categories of illocutionary acts labeled by Austin as verdictives and excertives. Verdictives include actions of ranking, valuing and placing, such as the utterance “You are the winner of the race” when uttered by an umpire in a race. Close relatives to verdictives are excertives, namely speech acts that order, permit, prohibit, authorize, etc. Pornography is an excertive because it is used to “rank women as sex objects.” It is also a verdictive as it “sexualize[s] rape, battery, sexual harassment...and it thereby celebrates, promotes, authorizes and legitimizes sexual violence” (MacKinnon 1987: 173; Langton 2009: 40). MacKinnon further argues that: “Pornography participates in its audience’s eroticism through creating an accessible sexual object, the possession and consumption of which is male sexuality, as socially constructed; to be consumed and possessed as which, is female sexuality, as socially constructed; pornography is a process that constructs it that way” (MacKinnon 1987: 173). Hornsby and Langton’s reconstruction of MacKinnon’s argument is aimed at establishing the distinctive illocutionary features of pornography. One difficulty in this claim is that the mere fact that speech has illocutionary effects has very little normative relevance. It is possible that a perlocutionary pornographic speech will have much greater effects on subordination than an illocutionary act of subordination. Neither Hornsby nor Langton
establish that a speech act that subordinates (illocutionary act) is more deserving of regulation than a speech act that merely causes subordination (perlocutionary act) even when the subordination resulting from the latter type of speech is not less significant or less hideous than the subordination resulting from the former. The existing definitions of most speech offenses rely heavily on the intention/meaning tests (a definition which rests on locutionary acts such as hate speech) or the materialization of harm test (a definition that rests on the perlocutionary act, such as speech, that is likely to cause violence or lead to discrimination) rather than on the illocutionary aspect of the speech (Harel 2000). Under this objection, it does not matter whether speech results in subordination because it subordinates (or because it is an act of subordination) or whether it results in subordination by causing or perpetuating subordination in some other way (Harel 2011). Furthermore, Langton believes that for pornography to constitute an act (either verdictive or excertive) it ought to be authoritative. What makes the statement “whites only” a speech act with illocutionary force is the fact that the person who utters it has authority over others. She believes that in many cases pornography has such authority as “the authors of pornographic speech are not mere bystanders to the game; they are speakers whose verdict counts” (Langton 2009: 44). Yet it is hard to defend this position. First, even if pornography is authoritative it is unclear that it is authoritative to the relevant audience, namely women (Green 1998: 292– 297). Furthermore, in order to maintain that pornography is authoritative, it is not sufficient that pornography causes men to believe that women consent (or that women ought to consent). Instead it is necessary to establish that they believe women consent because they believe that pornography dictates or at least provides accurate information as to what is right and wrong, normal or deviant in sex. If this were true, the man for whom pornography is authoritative would say to the reluctant woman: “You ought to have sex with me as I have
learned from pornography that it is deviant or abnormal for real women not to have sex with studs like me.” Yet while pornography may trigger or cause such convictions among men, it is most unlikely that men would justify their beliefs or behavior by pointing out that this is the way sex is depicted in pornographic materials (Harel 2011). Pornography does not seem to have an authoritative force, as consumers do not perceive it as a manual instructing them what good or normal sex is. Perhaps one exception to this claim is the case of minors who may be led to believe that pornography provides information as to what “normal sex” is or how sex ought to be performed.
Does pornography silence? MacKinnon also says that pornography “silences women.” Hence, under her view, the antipornography legislation is grounded in the same values as the values underlying the protection of speech itself. Regulation of pornography is necessary to protect women’s speech (MacKinnon 1987: 164). There are different possible interpretations of this claim. First, the claim can be understood as suggesting that women are less likely to exercise their right to free speech as a result of pornography either because they are intimidated or because their inferior status in society (resulting from the prevalence of pornography) undermines their confidence and results in passivity. Second, the claim can be understood as suggesting that while women may exercise their right to free speech they are unlikely to be heard; their speech is silenced not in the sense that women fail to exercise their right to free speech but in the sense that their speech fails to persuade. Women fail to be full-fledged participants in the marketplace of ideas because women speakers are perceived to be of lesser public importance or significance. Third, as Langton argues, women may be silenced because their speech
“misfires”; it fails to achieve the effects one aims to achieve by speaking. Langton describes this form of silencing as illocutionary silencing (Langton 2009: 48). To illustrate what illocutionary silencing is, Langton uses the utterance “no” uttered by a woman. The utterance “no” is used “typically to disagree, to refuse, or to prohibit.” Yet when uttered by a woman it often “does not count as the act of refusal.” Under this view the silencing of women results in depriving women of the possibility to use the word “no” and more generally deprives women of the ability to refuse sexual encounters. While some feminists have emphasized that pornography often sexualizes refusal, Langton wants to maintain that pornography precludes the very possibility of refusal. In attacking the first and the second understandings of this claim, Ronald Dworkin has argued that the right to free speech does not include “a right to circumstances that encourage one to speak, and a right that others grasp and respect what one means to say.” Under this view the right to free speech is a negative right designed to remove any stateinduced barriers to speech, but it is not designed to provide favorable circumstances for speech or to guarantee a favorable audience (R. Dworkin 1996: 232). Yet, as has been shown persuasively by rights theorists, this view has some major disadvantages (Taylor 1985). After all, at least part of the value of the right to free speech is grounded in the fact that many people of different persuasions exercise such a right. If some forms of speech intimidate and humiliate in ways which curtail the exercise of the right to free speech, why should we not limit the right in ways that in the long run reinforce the willingness to engage in speech, i.e., exercise the right? Similarly, should not the state reinforce the willingness of men to hear what women have to say? And should not such considerations override the right of those who denigrate women and perhaps other minorities to exercise their right? If part of the value of protecting the right to free speech is grounded in the importance of exercising the right and also in the importance of having an opportunity to
persuade and influence, then it does not seem that the scope of the right to free speech ought to ignore such considerations. Institutional concerns, in particular the concern of abuse, may limit our willingness to take such considerations into account. Yet in principle it seems that such considerations ought to influence the scope of the right to free speech. Furthermore, Ronald Dworkin fails to address the third silencing argument, namely illocutionary silencing. Depriving women of the capacity to refuse would, even under his view, constitute silencing, which justifies limitations on the free speech of pornographers (Langton 2009: 65–72). While both the claim that pornography is an act and the claim that pornography silences are important contemporary challenges to the protection of speech, more radical challenges can be found in Marxist or neo-Marxist theories. We turn now to examine one such challenge.
Part IV: Repressive tolerance In a famous essay (which has overall been ignored by liberal theorists), Herbert Marcuse describes liberal tolerance as a repressive tool. In his view, tolerance is a tool for reinforcing passivity and legitimating a false consensus founded on ignorance of progressive alternatives and on systematic indoctrination. Furthermore, Marcuse argued:
The tolerance which enlarged the range and content of freedom was always partisan – intolerant towards the protagonists of the repressive status quo...In the firmly established liberal society of England and the United States, freedom of speech and assembly was granted even to the radical enemies of society, provided that they did not make the transition from word to deed, from speech to action (1965).
Marcuse continues:
The realization of liberty necessitates tolerance, but this tolerance cannot be indiscriminate and equal with respect to the contents of the expression, neither in word nor in deed; it cannot protect false words and wrong deeds which demonstrate that they contradict and counteract the possibilities of liberation…Society cannot be indiscriminate where the pacification of existence, where freedom and happiness themselves are at stake: here certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed, certain behavior cannot be permitted without making tolerance an instrument for the continuation of servitude (1965).
Being a political activist, Marcuse often resorts to political rhetoric and, yet, his concerns are real. First, Marcuse is concerned that neutral tolerance blurs the fact that there is an objective truth to be discovered. The authentic liberal rationale for protection of speech – the search for truth – is lost when the idea that there is truth is eroded as a result of blurring the difference between truth and falsehood. Second, the liberal freedoms give a false sense that society is free and that any change would develop gradually and normally. Yet if the sense of freedom is indoctrinated it serves to repress the search for real alternatives and pacifies resistance. The freedoms are used to manipulate and indoctrinate individuals “for whom heteronomy has become autonomy.” Third, the language of public discourse has degenerated such that it forecloses real public deliberation. For instance, the leveling of all news, e.g., the fact that a “newscaster reports the torture and murder of civil rights workers in the same unemotional tone with which he says his commercials” blurs the distinctions between what is significant and insignificant; between important and unimportant. Fourth, to free individuals from current indoctrination “the trend would have to be reversed; they would have to get information slanted in the opposite direction.” As truth is never given in a non-
mediated way – it is always mediated by those who present it – it is necessary to undo the appearances which in our society are marked as truth (rather than truisms). Marcuse does not hesitate to suggest limiting the freedoms of “groups and movements which promote aggressive policies, armament, chauvinism, discrimination on the grounds of race and religion, or which oppose the extension of public services.” Liberal tolerance will mean, therefore, regulating speech that is regressive and promoting and privileging speech that is liberating. This is necessary as current liberal democracies are repressive and the continuing repression, although subtle, constitutes a “clear and present danger” (Marcuse 1965). The radicalism of Marcuse’s view is in fact echoed in more contemporary radical critics of current liberal regimes (Chomsky 1994, ch. 9). Yet one need not be a radical to see the significance of the observations made by Marcuse. The more concrete and specific (and therefore more politically efficacious) minoritarian critiques of the protection of speech can all be regarded as applied efforts to implement Marcuse’s more radical recommendations. In fact, the seeds of Marcuse’s critique can already be found in the liberal tradition itself. As Marcuse rightly pointed out, Mill advocated the protection of speech on the grounds that such a protection is liberating, and he acknowledged that the conditions for liberation do not apply everywhere. Perhaps the difference between the radicalism of Marcuse and the moderation of contemporary liberals is not in their readiness to promote genuine liberation (by whatever means) but merely in disagreement as to whether our society has indeed arrived at the stage in which protection of speech and tolerance is genuinely liberating. For tolerance and freedom of speech to be liberating, individuals ought to reach a degree of deliberative-critical powers; they ought to be capable of resisting the seductive powers of an overly commercial public sphere and to acquire powers of reasoning. It is debatable whether our society has ever reached this stage, or, if it had reached it, whether it has been lost.
V: Summary We have completed a full circle. We started by analyzing the traditional rationales for free speech: marketplace of ideas, autonomy, self-realization and the democracy argument. We pointed out a paradox in the discourse of rights – the paradox of the differential treatment of activities. If what underlies the protection of speech is autonomy or self-realization why should we protect speech rather than protect these values? Do we not fetishize speech by protecting it rather than protecting the values underlying it? We suggested that perhaps the protection of autonomy depends on societal conventions of protecting certain practices for the sake of enhancing autonomy. There is thus a close dependence between the values underlying rights and the activities protected by rights, such that protecting a defined set of activities for the sake of enhancing autonomy facilitates the identification and realization of autonomy. We turned to explore the contemporary minoritarian critiques of the free-speech protection. We have shown the complexity of the right to free speech by establishing that it is unclear what the boundary between speech and act is and it is unclear what forms of speech are truly liberating and what forms silence. Last, we turned to Marcuse’s radical critique of repressive tolerance. We found that while in some respects this is indeed a radical critique, it is founded on the very same values and sensitivities of traditional liberals: autonomy, liberation, self-realization, etc. The great task of liberal democracies is not to protect speech as such in a mechanical manner but to create and sustain the preconditions for speech to be genuinely autonomy enhancing and liberating. This ideal is shared by liberals, their minoritarian critics and their most radical critics.
References Abrams v. United States (1919) 250 U.S. 616. American Booksellers v. Hudnut (1985) 771 F.2d 323 (7th Cir. 1985). Baker, C. E. (1982) Human Liberty and Freedom of Speech, New York: Oxford University Press. Balkin, J. (2004) “Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society,” 79 New York University Law Review: 1–55. Barendt, E. (1982)? [see page 19] Barendt, E.[if 1982 reference added above, Barendt, E. here should be replaced with ____ (four underscore spaces)] (2005) Freedom of Speech, 2nd edition, Oxford: Oxford University Press. Briston, S. (1998) “The Autonomy Defense of Free Speech,” 108 Ethics: 312–339. Chomsky, N. (1994) Secrets, Lies and Democracy, Tucson, AZ: Odonian Press. Coase, R. H. (1974) “The Market for Goods and the Market for Ideas,” 64 The American Economic Review: 384–391. ____ (1977) “Advertising and Free Speech,” 6 The Journal of Legal Studies: 1–34. Cohen, J. (1993) “Freedom of Expression,” Philosophy and Public Affairs: 207-263. Dworkin, A. (1991) Pornography: Men Possessing Women, New York: Plume. Dworkin, R. (1996) “MacKinnon’s Words,” in Freedom’s Law: The Moral Reading of the American Constitution, Cambridge, Mass: Harvard University Press, p. 214. Green, L. (1998) “Pornographizing, Subordination, and Silencing,” in R. Post, ed., Censorship and Silencing: Practices of Cultural Regulation, Los Angeles: Getty Research Institute, pp. 285–311. Greenawalt, K. (1989a) Speech, Crime, and the Uses of Language, New York: Oxford University Press.
____ (1989b) “Free Speech Justifications,” 89 Columbia Law Review: 119–155. Harel, A. (2000) “The Regulation of Speech: A Normative Investigation of Criminal Law Prohibitions of Speech,” in D. Kretzmer and F. Kershman Hazan, eds., Freedom of Speech and Incitement Against Democracy, The Hague, Netherlands: Kluwer Law International, pp. 247–274. ____ (2005) “Theories of Rights” in M. P. Golding and W. A. Edmundson, eds., The Blackwell Guide to Philosophy of Law and Legal Theory, Malden, Mass.: Blackwell Publishing, pp. 191–206. ____ (2011) “Is Pornography an Act of Subordination? A Response to Langton,” forthcoming, Jerusalem Review of Legal Studies. Hornsby, J. (1995) “Speech Acts and Pornography,” in S. Dwyer, ed., The Problem of Pornography, Belmont, CA: Wadsworth Publishing, pp. 220–232. Ingber, S. (1984) “The Marketplace of Ideas: A Legitimizing Myth,” Duke Law Journal: 1– 91. Langton, R. (2009) “Speech Acts and Unspeakable Acts” in R. Langton, Sexual Solipsism: Philosophical Essays on Pornography and Objectification, Oxford: Oxford University Press, pp. 25–63. MacKinnon, C. (1987) Feminism Unmodified: Discourses on Life and Law, Cambridge, Mass.: Harvard University Press. Marcuse, H. (1965) “Repressive Tolerance,” in R. P. Wolff, B. Moore, Jr. and H. Marcuse, A Critique of Pure Tolerance, Boston: Beacon Press, pp. 95–137. Meiklejohn, A. (1948) Free Speech and Its Relation to Self-Government, New York: Harper & Brothers Publishers. Mill, J. S. (1859) On Liberty.
Milton, J. (1644) Areopagitica: A Speech of Mr. John Milton for the Liberty of Unlicensed Printing to the Parliament of England. Nagel, T. (1995) “Personal Rights and Public Space,” 24 Philosophy and Public Affairs: 83– 107. Raz, J. (1995) “Free Expression and Personal Identification,” in J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, Oxford: Clarendon Press, pp. 146–169. Scanlon, T. (1972) “A Theory of Freedom of Expression,” 1 Philosophy and Public Affairs: 204–226. ____ (1979) “Freedom of Expression and Categories of Expression,” 40 University of Pittsburgh Law Review: 519–550. Schauer, F. (1982) Free Speech: A Philosophical Enquiry, Cambridge: Cambridge University Press. Schenck v. United States (1919) 249 U.S. 47. Sen, A. (1999) Development as Freedom, New York: Knopf. Taylor, C. (1985) “Atomism,” in C. Taylor, Philosophical Papers Volume II: Philosophy and the Human Sciences, Cambridge: Cambridge University Press, pp. 187–209.
Further reading For further reading, see: S. Dwyer, ed. (1995) The Problem of Pornography, Belmont, CA: Wadsworth Publishing; C. MacKinnon (1987) Feminism Unmodified: Discourses on Life and Law, Cambridge, Mass.: Harvard University Press, part III; H. Marcuse (1965) “Repressive Tolerance,” in R. P. Wolff, B. Moore, Jr. and H. Marcuse, A Critique of Pure Tolerance, Boston: Beacon Press, pp. 95–137; J. S. Mill (1859) On Liberty, ch. II; T. Nagel
(1995) “Personal Rights and Public Space,” 24 Philosophy and Public Affairs: 83–107; J. Raz (1995) “Free Expression and Personal Identification,” in J. Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics, Oxford: Clarendon Press, pp. 146–169; T. Scanlon (1972) “A Theory of Freedom of Expression,” 1 Philosophy and Public Affairs: 204–226; and F. Schauer (1982) Free Speech: A Philosophical Enquiry, Cambridge: Cambridge University Press.
