Utilitas Forum on Free Speech

[Editors’ note: This post is an abbreviated version of Piers Norris Turner’s introduction to the upcoming Utilitas symposium “Mill on Free Speech.” For this PEA Soup discussion, Cambridge Core has made all the symposium contributions available for free here

  • Piers Norris Turner, “Updating Mill on Free Speech”
  • Melina Constantine Bell, “John Stuart Mill’s Harm Principle and Free Speech: Expanding the Notion of Harm”
  • Rafael Cejudo, “J. S. Mill on Artistic Freedom and Censorship”
  • Christopher Macleod, “Truth, Discussion, and Free Speech in On Liberty II”
  • Dale E. Miller, “The Place of “The Liberty of Thought and Discussion” in On Liberty

All the contributors have agreed to participate in the online discussion of the symposium.]

Introduction: Updating Mill on Free Speech
Piers Norris Turner, Ohio State University

J.S. Mill’s defense of freedom of discussion in chapter 2 of On Liberty (1859) is sometimes presented in a one-sided way. Famously, Mill makes the case for absolute “free discussion” on the grounds that critical challenge is vital to intellectual and social development, while restricting discussion is a dangerous form of social control. But more needs to be said about the limits of his argument in that chapter. Mill does not mean to protect all speech, or even all expression of opinion. Where does he draw the line?

The essays in this Utilitas symposium refocus attention on Mill’s arguments, showing his sensitivity to the complications that define many free speech cases. For instance, Melina Constantine Bell argues that Mill should be open to the regulation of “bigoted insults” that cause significant harm and don’t contribute to discussion. Dale E. Miller rejects a tendency to read Mill’s argument as depending on the balance of good and harm in restricting expression of opinion. He cautions that, on Mill’s view, most expression of opinion remains strictly “self-regarding” or harmless and so falls outside of society’s jurisdiction. Christopher Macleod focuses on Mill’s notion of “discussion,” arguing that chapter 2 is concerned only with epistemic practice concerning truth-apt propositions, and does not weigh epistemic good or harm against other considerations.  Rafael Cejudo then addresses the way artistic expression is, or is not, protected by Mill’s defense of free discussion in light of its epistemic benefits and potential harm. I encourage readers to engage these valuable contributions to our understanding of Mill’s arguments in chapter 2 and then join our discussion here at PEA Soup.

I won’t here rehearse the basics of Mill’s argument (which are summarized in my full introduction). Instead, I want to raise a few points that complicate Mill’s place in discussions about freedom of expression—showing his sensitivity to the difficulties that define many challenging free speech cases. Let’s begin with some of the evidence:

  • In “Mr. O’Connell’s Bill for the Liberty of the Press” (1834), Mill defends free discussion but is also clear about limits: “[I]t shall be lawful to controvert any political doctrine, or attack any law or institution, without exception; in any manner and in any terms not constituting a direct instigation to an act of treason, or to some other specific act to which penalties are attached by the law.”
  • In that article Mill also argues that private libel ought to be restricted even when the allegation is true. It is an invasion of privacy; only when conduct bears upon the “public character of a person” should it be open to public disapprobation or censure.
  • In On Liberty, Mill introduces the corn dealer case as an example of incitement or “instigation to some mischievous act” that may be restricted.
  • Finally, in “Thornton on Labour and its Claims” (1869), Mill considers the case of union members expressing their frustration at workers who benefit from the union’s efforts but are unwilling to make sacrifices themselves. He says that while it is justifiable for those workers “to have brought before them, in an impressive manner, what their fellow-workmen think of their conduct” there should be no “threat of infringement of any of the rights which law guarantees to all – security of person and property against violation, and of reputation against calumny.” A difficult case, he writes, is “picketing”:

Hooting, and offensive language, are points on which a question may be raised; but these should be dealt with according to the general law of the country. No good reason can be given for subjecting them to special restriction on account of the occasion which gives rise to them, or to any legal restraint at all beyond which public decency, or the safety of the public peace, may prescribe as a matter of police regulation.

How should we make sense of these cases of incitement, private libel, threat to equal rights, public safety, and public decency? To understand how to update Mill on free speech, our challenge is to see how he can both endorse restrictions on a range of expression of opinion and yet argue for absolute freedom of discussion.

The first part of this challenge is, I think, answered by an underappreciated comment Mill makes about Montesquieu in his earliest writing on the topic, “Law of Libel and Liberty of the Press” (1825). He writes that Montesquieu saw correctly that “the only case in which the expression of opinions and sentiments could be a fit object of punishment” is when – and here he begins quoting Montesquieu – “the words that are joined to an act take on the nature of that action.” Montesquieu gives this example: “a man who goes into the public square to exhort the subjects to revolt becomes guilty of high treason, because the speech is joined to the act and participates in it [. . .] Speech becomes criminal only when it prepares, when it accompanies, or when it follows a criminal act.”

Mill emphasizes that Montesquieu’s argument could extend beyond treason, and we have already seen him extend it. But then: are there other expressions of opinion that, in certain circumstances, become joined to criminal or harmful acts (say, threatening equal rights or even public decency) such that we may restrict the expression itself? If so, Mill should be open to considering such restrictions, at least in principle. (Again, see Bell’s article for an argument to this effect.)

To address the second part of the challenge – how can Mill then defend absolute freedom of discussion? – the key thought is to notice how consistently Mill uses the term “discussion” in defining the topic of chapter 2, and then ask what distinguishes discussion from other expressions of opinion. My own preferred version of this approach emphasizes that discussion is a subset of expression of opinion governed by basic norms of fairness, regard for truth, and sincerity, and that it is this practice that Mill means to defend absolutely and all things considered. (Macleod and Miller both address this issue.)

Interestingly, Mill tells us that even “discussion” may be restricted in “moments of panic,” and in his Considerations on Representative Government asserts that a “temporary dictatorship” could be justified in times of “extreme exigency.” The broader point is that Mill’s support for free discussion is contingent on circumstances—as befits a utilitarian—and he would not simply disregard new evidence affecting the realization of his liberal aims of learning from each other and providing a check on power. In non-crisis circumstances, Mill would likely conclude that any restriction on discussion ultimately makes things worse—I do not mean to lose sight of that core part of his view. But if freedom of discussion turned out to hinder our learning from each other under certain, delineable circumstances (perhaps by diminishing certain voices), that would be an important finding for him. Already in On Liberty, he notes the unfair ability of dominant groups to “stigmatize those who hold the contrary opinion as bad and immoral.” And even as he defends freedom of discussion against formal restriction, he ends his chapter by characterizing a “real morality of public discussion” – of sincere and charitable engagement – to be enforced by the opinion of interlocutors themselves.

Mill’s defense of freedom of speech in chapter 2 begins to look rather like a defense of not restricting viewpoints in frank and fair-minded public discussion. That is a more limited, though still very important, claim. But it leaves open key questions, such as whether Mill intends to protect manipulative, demeaning, or coercive expression of opinion tied to significant harms. What, then, is his settled overall view of what speech should or should not be protected?

Mill writes: “there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.” We have been asking why he believes this, and what is packed into the notion of “discussion, as a matter of ethical conviction” that justifies its being unrestricted. In doing so, we have also uncovered some clues about when Mill is willing to consider restrictions on speech. Perhaps the main lesson of this symposium is that we must look beyond On Liberty for Mill’s complete view of freedom of speech. What the “fullest and freest comparison of opposite opinions” requires in our social and political circumstances is something Mill himself would have us continue to reflect on.

 

*for citations in this post, please see the link to my full introduction in Utilitas

4 Replies to “Utilitas Forum on Free Speech

  1. I wonder if Mill’s arguments are weakened when the marginal cost of relaying claims is so low. In particular, sending misleading or false information online is much less demanding than it would have been in his time (“Flooding the zone with $#!&” in Bannon’s phrase comes to mind).

    It seems intentionally false or misleading information (the most important original usage of the term “fake news”) satisfies the criteria he adduces: (i) it is discussion (i.e., it is comprised of truth-apt claims); and (ii) it is not directly incitement to treason or massive violent action. However, the practical limits on simply spreading falsehoods on public matters would have been a full time undertaking for a person in the late 19th century whereas today it is easy to send emails, texts, or links (especially if sponsored) to thousands or even hundreds of thousands in one’s spare time. In turn, any given person has limited time and attention span so the externalized costs of that intentionally false information mean that it is more believed that it would have been if we had fewer views and ideas to carefully consider.

    In other words, perhaps Mill was right about his time, but wrong about ours–but for practical reasons, not moral or conceptual ones.

  2. Kian, Thanks for that comment, and let me also take a moment to thank PEA Soup for posting this symposium.

    My own view is that *in On Liberty* Mill is not defending the communication of intentionally false or misleading information. That is not within “discussion,” properly speaking. False or misleading information offered in the context of sincere, truth-oriented discussion is protected. On that view, then, I think Mill would still support free discussion given modern technology.

    To understand what Mill would say about the communication of intentionally false or misleading information, I believe we need to go beyond On Liberty. And there the verdict is ambiguous, it seems to me. He is open in principle to restrictions on speech that is not discussion and is tied to significant harms or crimes. But in early essays on the topic, he also worries more explicitly about the potential abuse by authorities if given the right to regulate speech (though even there some of his focus in on the content of discussion and not all kinds of speech). I can’t here survey all his writings, but besides the passages I quoted already, I’d point people to his essay “Free Discussion [I]” from 1823, and his essay “Law of Libel and Liberty of the Press” from 1825 for clues. The balancing of the relevant goods and harms of that speech might change over time, and we would expect Mill to update his views.

  3. https://www.cambridge.org/core/journals/canadian-journal-of-economics-and-political-science-revue-canadienne-de-economiques-et-science-politique/article/abs/john-stuart-mill-servant-of-the-east-india-company/D220DAF8B7524730FD09C323CA28596A

    Extract

    It is generally known that John Stuart Mill spent his working career in the service of the East India Company, but very little has been written about him in this capacity. As an administrative official of the company, the home government of India, John Mill’s activities have been greatly overshadowed by the influence exerted upon Indian policies by his father, James Mill, historian of British India and a member of the Examiner’s Office of the Company from 1819 until his death in 1836. Like his father, John Stuart recognized the company’s government of India for what it actually was—a despotism of an alien race, which, despite the good accomplished by it in the last decades of its existence, was established by conquest, treaty, and annexation. And yet, he spent almost half of his life as an official of this establishment, drafting dispatches to the India government, and, in defence of the company’s rule against extinction by Parliament, wrote what Lord Grey described as the ablest state paper he had ever read.

    How did John Mill, the great exponent of nineteenth century liberalism, reconcile his employment as an official of a despotic government with his espousal of the principles of civil and political freedom? How, in other words, did he reconcile this freedom with colonialism? What conceptions did he entertain concerning: (1) the place of India in the history of civilization; and (2) its eventual emergence from British rule as an industrially transformed self-governing nation? These questions, arising out of Mill’s career with the East India Company, have not been discussed in any of the numerous treatises on the great man. In considering them here we hope to fill this gap in the literature. Other questions, such as Mill’s administrative skills and his influence upon the company’s policies, cannot be taken up in this paper. The author does not share the view that Mill’s influence at India House was insignificant. He is inclined to a moderate version of Henry Fawcett’s opinion that all the important principles for governing the great dependency of India were laid down by Mill in the documents he drafted for the East India Company.

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