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Rethinking Freedom of Speech

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by Siddharth Jayaprakash

It is no revelation to assert that freedom of speech has taken a beating from popular political uprisings recently. A major issue is influential politicians deriding fact-finding institutions like the media as ‘fake news’ outlets and hence not to be trusted. However, such statements are protected by age-old principles like the right to freedom of speech. This is especially true of the United States where constitutional protections of the free speech doctrine have historically been stronger than those guaranteed by the courts of Europe which take a ‘proportionality’ based approach. In an age where this is increasingly becoming an issue, is it time to rethink the traditional justifications for freedom of expression?

The root of the problem is the traditional basis for free speech, famously argued by JS Mill (1869). He believed in the ‘marketplace of ideas’ (Holmes J in Abrams v US)  and that the truth would inevitably prevail over lesser truths and falsehoods due to some inherent quality that it possesses. However this justification admittedly fails in the face of the empirical facts, especially the facts that we see in the current political climate. It is simply not true that the truth inevitably prevails. As Scanlon (1979) argued, the worth of products in an actual marketplace is guaranteed by the fact that the consumer recognises good products and therefore increase demand for quality. But there is little evidence to support the idea that citizens unfailingly prioritise true news as opposed to false assertions by politicians. In today’s world, money can make false facts more visible than true – but less funded – news. Hence the ‘marketplace of ideas’ logic crumbles.

There are two major conceptions of the free speech doctrine that would possibly justify curbing such false speech: what I have christened the ‘Langton’ style argument and the ‘Strauss’ argument respectively. The former depends on the disproportionate influence that a self interested politician representing the government wields, and the latter depends on the wrongness of ‘manipulative lies’ generally.

Catherine MacKinnon raised a famous argument in the context of women’s rights and pornography in her book Feminism Unmodified. In a nutshell, she argued that pornography, rather than being protected by the doctrine of freedom of expression, in fact undermined it since it ‘silenced’ women by portraying them as people whose opinions are worth less than those of men. The benefits of free speech are best experienced when autonomous individuals, all of whose opinions are equally respected, are allowed to voice those opinions without sanction. However, if certain kinds of speech inevitably result in the opinions of some mattering less than those of others, then it is in fact a perversion of free speech to allow it. However, Dworkin in Sovereign Virtue criticised this idea. The crux of his argument was that inevitably, in the free speech arena the opinions of some are going to matter less than those of others – if you subjectively disagree with someone, then obviously you will come to value that person’s opinion less than that of people you do agree with.

Later however, Langton in the article ‘Speech Acts and Unspeakable Acts’ raised the dichotomy between ‘perlecutionary’ and ‘illocutionary’ speech acts and in the process highlighted a situation where MacKinnon’s argument was unhindered by Dworkin’s argument. ‘Perlecutionary’ speech refers to the actual ‘effects’ of the speech and requires us to consider whether empirical data does in fact point to the conclusion that women – and other groups - are indeed silenced. This is obviously a difficult job to do and is the biggest weakness of the MacKinnon style argument. However, ‘illocutionary’ speech refers to the verdictive power that somebody wields. This body acts as an ‘umpire’ and hence whatever it says is true, actually becomes true. In our case, the politician’s assertions have a verdictive ‘illocutionary’ force by virtue of the societal conventions that recognise the government’s authority: it is acting as an umpire that gives a verdict. By its statements, it ranks the press as lesser than others. This undermines the ‘citizen equality’ wing of Dworkin’s ‘partnership’ conception of democracy. In other words, because of the illocutionary force of the politician’s false assertions, they can justifiably be curbed since they undermine democracy.

Another technique is one proposed by David A Strauss. According to him, at the crux of freedom of expression is the idea that the government may not restrict speech on the basis that it is too ‘persuasive’ regardless of whether it might cause harmful effects. However, ‘persuasion’ refers to a rational process involving autonomous individuals. This is not the case where individuals are led to believe something not on the basis of persuasion but on the basis of malicious falsehoods. In this situation, it is in fact the responsibility of the government to restrict speech of this kind subject to certain de minimis standards. This would effectively illegalise demonstrable lies by irresponsible politicians assuming it is possible to prove that they had ‘the intention to manipulate’. It would also illegalise false information sent out by private corporations assuming they had the same intention.

Contrary to what one might immediately think, his conception is not unjustifiably broad. The important caveat is that there must be an ‘intention to manipulate’ on the part of the politician. Hence there is no question of a ‘chilling effect’ interfering in the ordinary work of politicians since inadvertent lies or lies for the purpose of national security are not covered.

In conclusion, it is necessary for us to devise new justifications for freedom of expression in light of modern circumstances. Strauss’ conception is one candidate for the prize, as is Langton’s. However, given the permeation of Mill’s and Meiklejohn’s conceptions it is unlikely that any change will be immediately forthcoming.