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Question of the Month

What are the Moral Limits of Free Speech and Action?

Each answer below receives a book. Apologies to the many entrants not included.

The issue of free speech seems particularly relevant today. Academics can be reprimanded and even suspended for suggesting that British colonialism was not all bad, or for making a joking remark in a lift. Trolls threaten to rape or behead those whose opinions they don’t like. A group of minor celebrities are attempting to limit further the freedom of the press. In such circumstances it is urgent to find some criteria for establishing what is acceptable and what the moral limits are to free speech. This is easier said than done, as relativism is rife: my freedom of speech may be your cue for expensive litigation or physical retaliation. There are of course legal restrictions on freedom of speech: laws against slander and libel, hate speech, incitement to violence. But are these laws based on sound moral principles?

It’s more difficult to establish the moral limits to freedom of speech than those to freedom of action. John Stuart Mill’s ‘harm principle’ holds that one can do whatever one likes as long as one doesn’t harm other people. This principle is easier to apply to actions than to speech. Harmful actions leave bruises and scars, damaged property, stolen possessions. The mental harm that might be caused by free speech is more difficult to recognise and quantify. What is significant mental harm? Embarrassment? Distress? Anguish? Fear for one’s life? At what point does the free speech that causes this mental harm become morally unacceptable? Is it reasonable to allow more latitude for criticism when the targets of it are public figures rather than private individuals? Another problem is to decide what should be judged: the intention of the speaker, or the perception of the receiver? It should be the intention of the speaker that counts; but is there is a further onus on the speaker to tread carefully and treat predictable sensitivities tactfully?

Having posed many questions I find I have space only to enunciate a few general principles concerning the limits of free speech:

• The media and individuals should not disseminate known falsehoods, or information they are not fully justified in believing.

• The media and individuals must be free to make informed criticisms of politicians, the government, and its policies.

• People should be free to make informed criticism of religious and ideological tenets and beliefs. There is nothing stopping them making informed criticisms of scientific theories, either.

• People should not be criticised for what they are – for their race, colour, sexuality, etc. – but only for what they do.

Michael Brake, Epsom, Surrey

“Why should your right to freedom of speech trump a trans-person’s right not to be offended?”

With this question, Cathy Newman’s Channel 4 interview with psychologist Jordan Peterson found viral fame. Under discussion was Canada’s legislating for the right of transgendered people to be addressed by their preferred pronouns – something Peterson argues amounts to compelled speech. “In order to be able to think, you have to risk being offensive,” Peterson replies; “You’re certainly willing to risk offending me in the pursuit of truth.”

This encapsulates the central modern argument around free speech – should we limit one party’s freedom of expression in order to prevent offending another party? Few would argue against criminalising incitement to violence, for example; but do we have a right to simply not be offended?

One suspects that that champion of liberty, J.S. Mill, would have little sympathy with the idea. In On Liberty (1859), Mill describes freedom of speech (and of the press) as “one of the securities against corrupt or tyrannical government” (p.28), and asserts that any person should be allowed to hold and freely discuss any view, “however immoral it may be considered” (p.199). Mill’s only moral limitation was that one cannot harm another – a much debated caveat which, it seems reasonable to assume, does not include mere hurt feelings.

Two centuries before, Thomas Hobbes theorised that peaceful coexistence was only possible in human society when “a man… lay down his right to all things; and be contented with so much liberty against other men as he would allow other men against himself” (Leviathan, 1651, p.80). Given Hobbes’ obsession with political stability, he would undoubtedly advocate censoring politically subversive speech. But on the moral issues at the individual level that dominate modern debates he appears to have had little to say. Perhaps a reformulation of that premise in Leviathan may help us here. Let’s imagine that each person may restrict the rights of another only to the extent to which that person would want their own rights restricted. From this it becomes very difficult for anyone who wishes to exercise their own free speech to restrict the speech of another. Do I want the freedom to assert my views? Then I must allow others the freedom to ridicule them. So, ultimately, for both Peterson and Newman, their own freedom of speech must come first, the other’s feelings must come second. We must learn, somehow, to live with that.

David Redfield, Kinsham, Powys

J.S. Mill’s idea that “power can be rightfully exercised over any member of a civilized community [only] to prevent harm to others” is quite widely used in the modern world. Nowadays, we generally accept such civil liberties, limit state jurisdiction over individual conduct and value personal autonomy. Alongside recognizing the importance of individual freedom, and in line with Mill, many societies have also criminalized incitement to violence against racial and other minority groups.

There is a definite case for infringing speech and action only when it defends others from physical harm. In Mill’s own example, it may be acceptable to condemn someone in print, but not acceptable to condemn them before a mob outside their home. However, it could also be argued that speech and action may be restricted short of prevention of physical harm. Modern legal practice reflects this, prosecuting individuals even if their violent threats are not carried out. Additionally, consider libel: although not causing physical harm, spreading false information may damage someone’s reputation, or be sufficiently injurious in some other way, so that legal action and financial recompense is justifiable. There are other actions which, although not causing physical harm, nor even illegal, may also be unethical. Consider a millionaire who places money in off-shore accounts to avoid tax. They are shirking their responsibilities by evading the taxes that their fellow citizens pay.

There are other exceptional instances where free speech and action may appropriately be curtailed, such as in court cases. Knowledge of evidence or other information may need to be restricted, not only to protect those involved, but to ensure that the proper rule of law is observed. For example, a court case may be dropped if it is suspected the jury has been unduly swayed by leaked knowledge of the defendant’s previous criminal record.

It seems inevitable that speech and action must sometimes be restricted, albeit wisely, if we wish to live in a just society. Contrary to Mill, the limit on our freedom to speak and act as we please extends beyond the causing, and incitement to cause, physical harm, to causing other sorts of harms too.

Jonathan Tipton, Preston, Lancashire

All governments set legal limits to free speech; but as John Locke put it, “the business of laws is not to provide for the truth of opinions but for the safety and security of the commonwealth.” So what about moral limits to speech?

We must be allowed to make public use of our reason, even if just to test the correctness of our own judgement through the understanding of others. According to Immanuel Kant, reason itself can be a source of error and therefore “reason must subject itself to critique in all its undertakings and cannot restrict the freedom of critique through any prohibition…” So intellectual independence, according to Kant, cannot exist in community with others without an absolute freedom: “For if this freedom is denied, we are deprived at the same time of means of testing the correctness of our moral judgements, and we are exposed to error.” The belief that we act freely motivates us to act morally and in turn, according to Kant, by acting morally, we are free. Therefore putting any moral restrictions to free speech would limit our endeavour to build moral character, and our freedom.

To be wise, one needs to follow Buddha’s advice on Noble Silence, and simply shut up. But to be moral one needs the sacred right of free speech!

Nella Leontieva, Sydney

An ongoing debate in comedy provides an interesting microcosm by which to focus on the question. It asks, ‘Does a comedian have the freedom to speak for the sake of humour if it reinforces oppressive societal structures that limit freedom?’

Some argue that being ‘funny’ justifies the means. The 2017 documentary The Problem with Apu critiques The Simpsons character as a racial caricature of South Asians. In it, Simpsons writer and producer Dana Gould says that “there are some accents, that to white Americans… are just funny, period.” Yet according to the documentary’s writer Hari Kondabolu, the underrepresentation of South Asians in the US media in the 1990s led to repeated stereotyping references to Apu often outside the context of comedy.

I propose a maxim that aims to enable the practice of comedy while taking its reception seriously and avoiding the imposition of blanket understandings of ‘funny’ by those who might never experience why a joke is problematic. When making a joke, ask whether the person or people at whose expense the joke is being made could reasonably be expected to recognise its comedy value.

The maxim might appear Kantian, in that it offers a maxim which aims to conserve the universal right to freedom. Actually, it draws on insights from my study of Derrida and Heidegger – that supposedly categorical or universal ‘truths’ can have oppressive consequences. So it aims to recognise the multi-aspectival nature of what is ‘funny’. The ‘reasonable’ is also key here, given the common retorts that comedy is being ‘shut down’ by political correctness and that ‘any joke will offend someone’. The challenge is judging when offence is ‘reasonable’ – which is especially tricky given that a joke will be heard by audiences with complex identifies different to the comedian’s. A rule of thumb for working out what is reasonable would be to engage actively with critics rather than just assume that one’s own understanding can act as the arbiter of ‘funny’. If the critics are numerous and unified, then listen to them! My maxim moreover recognises that communal standards are historical and evolving, which calls for a constant self-critique, to engage actively and recognise where mistakes have been made.

On this understanding, the limits of free speech would be minimal and flexible rather than homogenising and universal, calling for constant self-critique via open engagement with others.

Tom Pryce, King’s College, Cambridge

If what is being said and/or done is both inappropriate and threatening, it goes beyond moral limits. An insult, for example, is inappropriate: it’s speech that it is reasonable to expect not to occur. A threat is anything that puts the well-being of at least one other person into question or at stake (a person cannot threaten themselves). If and only if both conditions are met, the thing being said or done has exceeded moral limits to free speech or action.

The classic example for the combination is shouting “Fire!” in a crowded theatre. If we assume that there is no fire, a person shouting “Fire!” is acting in an inappropriate way; they are doing something out of place. By itself this isn’t a sufficient condition for exceeding free speech limits; but if the individual shouts it in a way that causes the audience to panic, they put the safety of others at stake. Then they have acted in a way that is both inappropriate and threatening, so their action exceeds the proper limits of free speech.

There are situations in which either inappropriate behaviour might not put peoples’ well-being into jeopardy, or where threats are entirely appropriate. An example of the former is when someone refuses to take their shoes off when entering a building despite having been asked to do so; an instance of the latter might be when boxers at a weigh-in brag to each other what they’re going to do to each other during the fight. The former doesn’t cause recognisable harm, while the latter is not inappropriate (there may always be extra factors that complicate these claims).

Where political action is concerned, it is always possible that the ‘inappropriateness’ or ‘threat’ might only be perceived by a dominant power that is itself oppressing free speech. Therefore another qualification here is that it must always be shown that the ‘moral limits’ being tested are genuinely helpful to the self-determination of the people in general. Thus an act might be both threatening and otherwise inappropriate, but it might also be intended to undermine a repressive power, in which case it does not exceed moral limits to free speech/action, precisely because it acts against a political system which prevents speech and action from being freely exercised.

Alastair Gray, Brighton

Whenever the subject of freedom of speech or action comes up, I’m reminded of George Orwell’s 1984 and particularly his concept of doublethink. For while we all claim to support free speech and action,we often find it hard to tolerate opinions that challenge our own point of view or actions that go against our desires. Worldwide experience shows that political dissenters tend to be marginalized when they have differences of opinion with their political leaders. In the companies where we work, democratic management still remains a distant concept in the top-down chain of command. As regards the media, while many of us recognise that they’re a fundamental cornerstone of democracy, the fact is that they can be quite lacking in independence and objectivity. Much more worrying is the fact that a major trend is that reporting is not being backed by solid evidence.

Nevertheless, there does exist some basis for moral limits to freedom of speech and action, when we consider how this right has been used abusively to incite violence, hatred, racism, intolerance , manipulation, and distortion of reality. Taking a cue from Karl Popper’s paradox of tolerance, societies embracing openness should not tolerate the intolerant, since they would eventually be seized or destroyed by intolerance. Otherwise, in my opinion the moral assessment of someone’s expressions and actions needs to be derived from three main moral principles:

• What is hateful, hurtful or undesirable to you must be reciprocated in your behaviour to others.

• The moral worth of freedom of speech and action ultimately resides in the intention. It is one thing to express an opinion against a particular kind of religion, but having the intention to insult a person’s religious feeling is quite another.

• We should express opinions or conduct our behaviour with regard to rules of conduct conducive to the greatest happiness.

Ian Rizzo, Zabbar, Malta

I’m not clear whether your question concerns what we should not do and say, or whether it concerns what we should not be allowed to do and say. What we should not do or say (if anything) is a large subject, covering the whole of ethics. I won’t attempt to answer that here. I will deal with the more limited issue of what we should be allowed to do and say, or, more accurately (since I don’t really know what should be the case), what I approve of us being allowed to do, and, especially, to say.

With a few exceptions, I approve of people being free to speak. I want to belong to a culture in which people are allowed to express different ideas, to question beliefs, to pursue truth, and to debate what is true or right or desirable. In most societies through history, this has not been allowed much, and so it is a precious thing and I’d like it to be protected. In terms of limits to free speech, I would draw the line at threatening behaviour, harassment or instigation of violence. However, I wouldn’t approve of banning speech simply because other people don’t like it, or find the ideas expressed disturbing, offensive or insulting. In order to be able to freely debate beliefs, we need to be able to say what we think about other people’s beliefs. So we should not be compelled to show respect for their beliefs, but we should respect their right to hold and express those beliefs. This should apply regardless of whether people’s beliefs are, for example, racist or sexist. This is partly because, if we are to be free to pursue the truth about sexism, for example, we would need to be free to debate whether or not sexism can be justified.

Regarding freedom of action, this is a more complicated subject. Very briefly, I would allow mentally competent adults the freedom to damage their own interests, but, in very many cases, not the freedom to significantly damage other people’s interests without their consent.

Peter Spurrier, Halstead, Essex

I believe that the question, ‘What are the limits of moral action?’ is not answerable at this time. So, I will not try to answer it. Rather, I will propose a program (or two) for answering it.

If there is one single supreme moral principle, then the moral limit of free action is when that principle is violated. If there are many moral principles, then there are as many moral limits to free action as there are principles. The moral limit defined by any one principle would be when an action violates it.

In practice, almost all people refer to many moral principles for guidance. Moreover, they believe these principles to be binding on everyone else. So it seems that we would have to identify every moral principle in order to determine all the limits of free action.

The task of collecting all the moral principles in use would be one for anthropologists. However, once collected, we will see that some principles imply others, and that some contradict others. The principles will need to be clarified, ordered, some accepted, and some thrown away. This is the task of the philosopher.

Carrying out the program I’ve described would be a Herculean task. Unfortunately, this approach may be required to say we know the moral limits of free action with the utmost confidence.

The program may be hastened along by a two step process. First, we identify the known moral principles of greatest use in our culture. These would be principles used in personal, social, and political lives. No special expertise is needed for this. Second, we determine what these principles have in common. Philosophers have been at this task for thousands of years, and it’s on-going.

So I do not propose an answer to the question about the moral limits of free action. However, I do have an opinion about the territory within which the answer will be found. It is that of basic human rights. And I have an opinion about the form of the answer: You have reached the limits of free action or speech whenever you violate a person’s basic human rights. This is not so much an answer as a rough guide. Much more is needed even here. We must clarify the meanings of ‘basic human rights’ and ‘violation’, and we must satisfactorily apply the guide to specific kinds of cases.

John Talley, Rutherfordton, NC

Next Question of the Month

The next question is: Is The World An Illusion? Please give and explain your answer in less than 400 words. The prize is a semi-random book from our book mountain. Subject lines should be marked ‘Question of the Month’, and must be received by 15th October 2018. If you want a chance of getting a book, please include your physical address. Submission is permission to reproduce your answer.

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