‘Free Speech’ is a Blunt Instrument. Let’s Break It Up, by Robert Simpson

April 15, 1967, Spring Mobilization to End the War, San Francisco

Free speech is important. It guards against governments’ dangerous tendency to repress certain kinds of communication, including protest, journalism, whistleblowing, academic research, and critical work in the arts. On the other hand, think of a doctor dispensing bogus medical advice, or someone making a contract that she plans to breach, or a defendant lying under oath in court. These all involve written or spoken statements, but they don’t seem to fall within the domain of free speech. They are what the legal theorist Frederick Schauer at the University of Virginia calls ‘patently uncovered speech’: communication that warrants no special protection against government regulation.

However, once we extrapolate beyond the clear-cut cases, the question of what counts as free speech gets rather tricky. A business whose website gets buried in pages of search results might argue that Google’s algorithm is anti-competitive – that it impedes fair competition between sellers in a marketplace. But Google has dodged liability by likening itself to a newspaper, and arguing that free speech protects it from having to modify its results. Is this a case of free speech doing its proper work, or an instance of free speech running amok, serving as cover for a libertarian agenda that unduly empowers major corporations?

To answer this question, we need a principled account of the types of communication covered by free speech. But attempts to provide such an account haven’t really succeeded. We can pick out cases on either side of the divide – ‘Protections for journalism and protest? Yes! For perjury and contracts? No’ – but there aren’t any obvious or natural criteria that separate bona fide speech from mere verbal conduct. On the contrary, as theorists have told us since the mid-20th century, all verbal communication should be understood as both speech and conduct.

Some authors see these definitional difficulties as a fatal problem for the very idea of free speech. In There’s No Such Thing as Free Speech: And It’s a Good Thing Too (1994), the American literary critic and legal scholar Stanley Fish argued that ‘free speech’ is really just a rhetorically expedient label that people assign to their favoured forms of communication. There’s a grain of truth in this; but it doesn’t change the fact that governments still have a tendency to repress things such as protest and whistleblowing, and that we have good reasons to impose institutional safeguards against such repression if possible.

Instead of throwing out free speech entirely, a better response might be to keep the safeguards but make their sphere of application very broad. This is roughly what happens in Canadian law, where nearly any type of conduct can fall within the constitutional ideal of ‘free expression’, provided that it is trying to convey some kind of meaning. The downside is that if nearly anything can qualify as ‘expressive’ in the relevant sense, then we cannot categorically privilege expression itself as an inviolable norm. WhistlAll we can ask lawmakers to do is factor in the interests that such expression serves, and try to strike a balance with all the other, competing interests (such as ‘equality’, for example, or ‘national security’). While such trade-offs are standard in Commonwealth legal systems, they have the unwelcome effect of making it easier for governments to justify their repressive tendencies.

I’d propose a third way: put free ‘speech’ as such to one side, and replace it with a series of more narrowly targeted expressive liberties. Rather than locating actions such as protest and whistleblowing under the umbrella of ‘free speech’, we could formulate specially tailored norms, such as a principle of free public protest, or a principle of protected whistleblowing. The idea would be to explicitly nominate the particular species of communication that we want to defend, instead of just pointing to the overarching genus of ‘free speech’. This way the battle wouldn’t be fought out over the boundaries of what qualifies as speech, but instead, more directly, over the kinds of communicative activities we think need special protection.

Take the idea of public protest. Standard free-speech theory, concerned as it is with what counts as speech, tends to draw a line between interference based on the content of the speech, such as the speaker’s viewpoint (generally not allowed), and interference that merely affects the time, place and manner in which the speech takes place (generally allowed). But this distinction runs into trouble when it comes to protest. Clearly governments should be blocked from shutting down demonstrations whose messages they oppose. But equally they shouldn’t be able to multiply the rules about the time, place and manner in which demonstrations must take place, such that protests become prohibitively difficult to organise. One reason to have a dedicated principle of free public protest, then, is to help us properly capture and encode these concerns. Instead of seeing demonstrations as merely one application of a generic free-speech principle, we can use a narrower notion of expressive liberty to focus our attention on the distinctive hazards faced by different types of socially important communication.

If this all seems a bit optimistic, it’s worth noting that we already approach some types of communication in this way – such as academic freedom. Universities frequently come under pressure from political or commercial lobby groups – such as big oil, or the Israel lobby – to defund research that runs counter to their interests. This kind of threat has a distinctive underlying causal mechanism. In light of this problem, universities safeguard academic freedom via laws and regulations, including guidelines that specify the grounds for which academics can be fired or denied promotion. These moves are not just a specific implementation of a general free-speech principle. They’re grounded in notions of academic freedom that are narrower than and distinct from freedom of speech. My suggestion is that all our expressive liberties could be handled in this way.

The subdivision of expressive liberties isn’t going to magically fix all the genuinely controversial issues around free speech, such as what to do about search engines. However, we don’t need to resolve these debates in order to see, with clarity and confidence, that protest, journalism, whistleblowing, academic research and the arts need special protection. The parcelled-out view of expressive liberties captures the importance of these activities, while sidestepping the definitional problems that plague standard free-speech theory. These are not merely theoretical advantages. Any time a country is creating or revising a bill of rights, the question of how to protect communicative practices must be considered afresh. Multiple expressive liberties is an approach worth taking seriously.Aeon counter – do not remove

This article was originally published at Aeon and has been republished under Creative Commons.

Robert Simpson is a lecturer in philosophy at Monash University in Melbourne, Australia. He writes regularly about social and political philosophy. (Bio credit: Aeon)

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*All views and opinions expressed by guest writers are their own and do not necessarily reflect those of Ordinary Philosophy’s editors and publishers

 

Happy Birthday, Jean-Jacques Rousseau! / O.P. Recommends …Rousseau on Nature, Wholeness and Education by Michele Erina Doyle and Mark K. Smith

Jean-Jacque Rousseau's Tomb in the Parthenon, Paris, photo 2015 by Amy Cools

Jean-Jacque Rousseau’s tomb in the crypt of the Parthenon, Paris, which I visited in 2015 during my travels there following the life and ideas of Thomas Paine, Mary Wollstonecraft, and Thomas Jefferson in Paris

I found this article I really enjoyed, called Jean-Jacques Rousseau on Nature, Wholeness and Education by Michele Erina Doyle and Mark K. Smith, and thought I’d share it with you in honor of his birthday. I regret I ran out of time to write an original one, but Doyle and Smith’s is excellent and I’m so glad to have discovered it! You’ll also find links below to more great resources to introduce you to the life and ideas of this strange and interesting man.

The article begins, ‘Why should those concerned with education study Rousseau? He had an unusual childhood with no formal education. He was a poor teacher. Apparently unable to bring up his own children, he committed them to orphanages soon after birth. At times he found living among people difficult, preferring the solitary life. What can such a man offer educators? The answer is that his work offers great insight. Drawing from a broad spectrum of traditions including botany, music and philosophy, his thinking has influenced subsequent generations of educational thinkers – and permeates the practice of informal educators. His book Émile was the most significant book on education after Plato’s Republic, and his other work had a profound impact on political theory and practice, romanticism and the development of the novel….’ Read more:

Learn more about Rousseau:

Bertram, Christopher, ‘Jean Jacques Rousseau‘. In The Stanford Encyclopedia of Philosophy

Cranston, Maurice. ‘Jean-Jacques Rousseau: Swiss-Born French Philosopher.’ In Encyclopædia Britannica.

Delaney, James J. ‘Jean-Jacques Rousseau, (1712—1778)‘, in The Internet Encyclopedia of Philosophy

Doyle, Michele Erina and Mark K. Smith (2007) ‘Jean-Jacques Rousseau on Nature, Wholeness and Education’, from The Encyclopaedia of Informal Education

West, Steven. Three episodes from the Philosophize This! podcast: Rousseau Government Pt. 1, Rousseau pt. 2, and Rousseau pt. 3 – The General Will

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!

New Podcast Episode: Frederick Douglass Seneca Falls, Canandaigua, Honeoye, and Mt Hope Cemetery Sites

Women's Rights National Historical Park headquarters, Seneca Falls NY

Women’s Rights National Historical Park headquarters, Seneca Falls NY

Listen to this podcast episode here or on Google Play, or subscribe on iTunes

Eleventh day, Tuesday March 30th

It’s a beautiful, clear sunny day, and the chill of the morning gives way to a balmy afternoon. I drive about an hour east and slightly to the south, through the lovely Finger Lakes region of New York to Seneca Falls.

I’m here to visit what’s now the Women’s Rights National Historical Park, which is headquartered at 136 Fall Street in Seneca Falls. I begin with the reconstructed Wesleyan Church next door at Fall and Mynderse Streets, the site of that momentous occasion which brings me here. I’ve long wanted to visit this place and had hoped to do so during my history of ideas travel series about Elizabeth Cady Stanton, but didn’t have enough time during that trip to make the journey, about a five hour drive from New York City one-way. But here I am at long last…. Read the written account here:

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, entirely supported by patrons and readers like you. Please offer your support today!

New Podcast Episode: Behind the Veil: Rawls, Locke, de Tocqueville, and Human Connection in a Liberal Society

People in a Public Square, cropped, Image Creative Commons CCO Public Domain via PixabayListen to this podcast episode here or subscribe on iTunes

I’ve been listening to this excellent series from a favorite podcast of mine, the Philosopher’s Zone on Australia’s RN (Radio National), hosted by Joe Gelonesi. There’s this recent series called Political Philosophy in the World, hosted by guest host Scott Stephens, which considers and critiques seven important topics in political philosophy. I just listened to the last one, Political Philosophy in the World: Liberalism and the End of the World as We Know It.

In it, interviewee Patrick Deneen offers a series of critiques of liberalism, his own and others’ over its roughly five century history. …The discussion in its entirety is absolutely fascinating, but my attention is caught particularly by Deneen’s observation of a problem with the great liberal political philosopher John Rawls’ famed ‘veil of ignorance’ thought experiment…. Read the written account here:

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, supported by patrons and readers like you. Please offer your support today!

Behind the Veil: Rawls, Locke, de Tocqueville, and Human Connection in a Liberal Society

People in a Public Square, cropped, Image Creative Commons CCO Public Domain via PixabayI’ve been listening to this excellent series from a favorite podcast of mine, the Philosopher’s Zone on Australia’s RN (Radio National), hosted by Joe Gelonesi. There’s this recent series called Political Philosophy in the World, hosted by guest host Scott Stephens, which considers and critiques seven important topics in political philosophy. I just listened to the last one, Political Philosophy in the World: Liberalism and the End of the World as We Know It.

In it, interviewee Patrick Deneen offers a series of critiques of liberalism, his own and others’ over its roughly five century history. (We’re speaking here not of liberalism as commonly understood in the U.S., as political positions on the left of the spectrum, but of classical liberalism, a political philosophy which focuses on liberty and the primacy of the individual.) From the beginning, liberal philosophers and their critics have identified and described possible contradictions in the system itself, and ways in which it may end up being self-defeating in the real world. For example, John Locke, a founding father of liberalism, recognizes that it would require a strong state to protect the autonomy of the individual from competitors and from the ‘querulous and contentious’, and that individual autonomy in a marketplace, unfettered by other constraints, will lead to conditions that foster inequality, discontent, and revolution (at about 4:40 and 14:40, then 10:30). Alexis de Tocqueville observes that though individuals enjoy this autonomy at the beginning, they are left weakened and alone by the erosion of those institutions that create bonds of loyalty and affection in a society, such as family, tradition, and belief (at about 15:00). Deneen, in sum, describes these and various other ways in which liberalism can fail to achieve its end of liberating the individual to achieve their potential to the fullest possible extent.

The discussion in its entirety is absolutely fascinating, but my attention is caught particularly by Deneen’s observation of a problem with the great liberal political philosopher John Rawls’ famed ‘veil of ignorance’ thought experiment (starting at about 19:00). Rawls’ veil of ignorance is a beautifully elegant method of envisioning and crafting a just society. Imagine you’re looking at a society from the outside knowing you’ll be placed in it with no idea what you’ll be: rich, poor, or middle-class; tall or short; intelligent or not; of which gender; outgoing or shy; of which race; employed or not and at what kind of job; and so on. Given this hypothetical situation, what cultural practices, laws, policies, governmental system, economic system, and so on, would you put into place? Behind that veil of ignorance, you’d be motivated to to design a society that’s just and fair, that benefits everyone to the greatest degree possible, since of course, you could be the one who suffers the ill effects of any injustice built into the system.

8694d-justice2bet2binc3a9galitc3a92b-2bles2bplateaux2bde2bla2bbalance2bby2bfrachet2c2bjan2b20102c2bpublic2bdomain2bvia2bwikimedia2bcommonsAs Deneen points out, Rawls, like other liberal political philosophers, recognizes that people in a liberal society may, over time, act not out of true freedom, but as slaves of their individual desires and passions. Since liberalism promotes the idea that society is and should be made of up autonomous individuals freely pursuing their own ends, the values of individuals in that society may become self-serving to the point of destructiveness. This destruction can be of social institutions that provide support and meaning, such as family, tradition, and belief, of liberalism’s own key institutions such as the free markets of goods and ideas, and as we now recognize, of the very environment from which all of this is derived. Rawls posits the veil of ignorance as a way to free ourselves from this trap, by transforming ourselves, in thought, into benevolent, self-effacing avatars of justice. But, Deneen points out, Rawls never really provides an explanation of why we we’d all want to go behind the veil of ignorance in the first place. After all, Rawls’ entire theory of justice-as-fairness as described in his magnum opus A Theory of Justice, which the view from behind the veil reveals to us, depends on the participation of everyone. If even one person remains aloof, that person’s interests and motivations aren’t considered or checked by those of others, which, in turn, is not fair.

From within the thought experiment, the motivation to go behind the veil makes sense: since liberalism is meant to promote the liberty and well-being of all individuals, it makes sense to envision and design a society where some individuals are not allowed to enjoy advantages that limit or even destroy the liberty and well-being of others. But this still doesn’t account for why we’d all want to go behind the veil in the first place. In a liberal society in the real world, only those suffering its ill effects will be motivated to do so, since those who have found relative success within its parameters will be ever more motivated to keep the pursuit of their own interests free from the demands and constraints of others until it serves them otherwise.

With the disconnection from other people which liberalism can tend to foster in mind, as described by de Toqueville and Rawls, I picture a whole society of people behind Rawls’ veil of ignorance. Then something in this picture strikes me: behind this veil, all the people are looking in the same direction, encircled around the society they must share. They are united, not separated by competing interests nor from the bonds of family, tradition, and belief. They are cooperating as equals, with a shared goal and a shared ethic: the liberty to achieve the fullest degree of perfection that an individual is capable of, with others’ interests as much in mind as their own so far as possible. These interests can and invariably do include family, tradition, and belief. Those with a narrow view of liberalism often speak only of individual interests as involving the individual pursuit for food and shelter, money, comfort, wealth, and prestige, and dismiss family, tradition, and belief as impediments to human liberty. But of course, this is not necessarily so, as we observe their lasting power and meaningfulness in the real world throughout history and to this day, even where liberalism as an institution is most robust. Material comfort and prestige are not and have never been the only and or even, for many, the primary motivators of thought and action in any society.

Behind the veil, then, is that deep need for human connection fulfilled in the context of an idealized liberalism, that the institution of liberalism in the real world can undermine if uncorrected by the state or by an ethic such as Rawls’ justice-as-fairness. Does Rawls have this picture of a united humanity in mind as he devises his thought experiment, though he doesn’t describe it per se? Perhaps Rawls does recognize this motivation for going behind the veil: our realization that while the pursuit of our own individual interests can be fulfilling, it can also undermine our potential of fulfilling our deepest humanity, not only tied to the destinies of others but with a deep emotional need for deep and lasting connections with one another. Behind the veil of ignorance, we are thus united, connected, bonded, sharing a vision, in a state of equal humanity, of a good and just world for all of us.

*Listen to the podcast version here or subscribe on iTunes

~ Also published at Darrow, a forum for culture and ideas

Ordinary Philosophy and its Traveling Philosophy / History of Ideas series is a labor of love and ad-free, entirely supported by patrons and readers like you. Please offer your support today!

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Sources and Inspiration:

Alexis de Tocqueville‘, in Encyclopædia Britannica Online.

Gaus, Gerald, Courtland, Shane D. and Schmidtz, David, ‘Liberalism‘, in The Stanford Encyclopedia of Philosophy

Political Philosophy in the World: Liberalism and the End of the World as We Know It.’ from The Philosopher’s Zone Podcast, Sun May 15 2016, Radio National, Australia. Host: Joe Gelonesi

Rawls, John. A Theory of Justice. Cambridge: Harvard University Press, 1971.

Uzgalis, William, “John Locke“, in The Stanford Encyclopedia of Philosophy

Happy Birthday, Thomas Jefferson!

In remembrance of Thomas Jefferson (April 13 1743 – July 4, 1826) on his birthday, here’s the story of my travels last year following his life and ideas

Ordinary Philosophy

Hello, friends of Ordinary Philosophy!

From time to time, I take a trip to some corner of the globe, to explore the lives and ideas of great thinkers in the places where they lived and worked. For this series, I follow in the footsteps of thinkers who are no longer alive, since those who are still telling their own stories. But those who are no longer alive in the body live on in the ideas that they pass on, and in the example they provide for us to follow.

I’m pleased and excited to announce my third philosophical-historical themed adventure, this time in Washington DC, Philadelphia, and various sites in Virginia to follow in the footsteps of…. you may have guessed it… Thomas Jefferson!

Thomas Jefferson was born on April 13th, 1743, and in his long life, he accomplished more than most. He was a founding father of the United…

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Ordinary Philosophy is Pleased to Introduce Eric Gerlach

Eric GerlachHello dear readers,

I’m so pleased to welcome Eric Gerlach as a regular contributor to Ordinary Philosophy!

Eric was my teacher some years ago when I returned to college to study philosophy. I attended his Introduction to Philosophy class, and it very much inspired and influenced me to this day. In the class, he emphasized and explained the connections between human thought in all times and places in a friendly, warm, and easygoing style, and ancient philosophy from all over the world seemed as relatable, timely, and relevant today as it ever was. He still teaches this excellent class, which I very much recommend if you’re ever enrolled at Berkeley City College. I’ve been continuing to enjoy his work at his blog for some years now.

I’m so thrilled that Eric accepted my invitation to lend his voice to Ordinary Philosophy, and I’m sure you’ll find his work as interesting and edifying as I always do. Please join me in extending Eric a warm welcome to O.P.!

~ Amy Cools, creator and editor of Ordinary Philosophy