[4.3.] Freedom of Speech.

 

Last week the Supreme Court heard arguments in the case of Morse v. Frederick. [1]

 

Joseph Frederick, a high school student in Juneau, Alaska, who was suspended from school for 10 days for displaying (with a group of friends) a long banner reading “Bong Hits 4 Jesus.” He was 18 years old at the time, and displayed the banner off school grounds (on a public sidewalk across the street from his the school), but while participating in a school-sponsored event and under the supervision of teachers. He displayed it as the Olympic torch was being carried through Juneau in January, 2002.The school’s principal, Deborah Morse, confiscated the banner and then suspended him for violating the school’s policy against promoting the use of illegal drugs.

 

Frederick sued Morse and the Juneau School Board claiming that his suspension violated his Constitutional guarantee of free speech. Recall that the first amendment to the Constitution reads as follows:

 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

 

And the Supreme Court has interpreted the 14th amendment as binding state governments to the same constitutional requirements as the federal government:

 

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

 

Frederick’s suit was dismissed by the U.S. District Court for the District of Alaska, but he appealed that decision and the U.S. Court of Appeals for the Ninth Circuit reversed the lower court ruling. Morse then appealed to the Supreme Court, which agreed to hear the case.

 

(It is easy to imagine legal realist Benjamin Cardozo responding to this case as he did in that of Hynes v. NYCR: Frederick would clearly be within his free speech rights were he to have displayed the banner, e.g., in his own yard, on a weekend; and he would have been in clear violation of the school’s rules had he displayed the banner, e.g., in the school’s gym during a pep rally. But given the circumstances, there is no straightforward ruling implied by any general legal principles, and so mechanical jurisprudence will not suffice in this case.)

 

 

[4.3.1.] Mill’s Defense of Free Speech.

 

Laws protecting free speech can be justified in two different ways:

·         by arguing that free speech has intrinsic value and is worth protecting for its own sake [e.g., Thomas Scanlon; see pp.234-7; we will cover Scanlon’s defense of free speech next time]

·         by arguing that free speech has extrinsic value, value as a means to an end (e.g., truth or democracy) [e.g., John Stuart Mill]

 

 

John Stuart Mill

·         1806-1873, English

·         In 1851, Mill married Harriet Taylor, a feminist who significantly affected his thinking about social justice. This was controversial, since they had been friends for many years while she was married to her first husband and she married Mill soon after she became a widow.

·         Mill contracted tuberculosis from his father and may have passed it on to his wife, who died in 1858 (Mill improved and outlived her by 15 years).

·         Before Harriet's death, she and Mill had planned to write a series of essays laying out their thoughts on various subjects. The only one they completed was On Liberty (1859), from which your reading is excerpted.

·         Mill’s other influential moral/political works include Utilitarianism (1861) and The Subjection of Women (1869).

 

 

[4.3.1.1.] Mill's Argument for Freedom of Thought and Speech.

 

Mill argues for the following claims:

 

·         It is immoral for the majority to silence a minority, either by social constraints or legislation.

 

·         Suppression of a minority by the majority is just as bad as, and sometimes even worse than, suppression of the majority by a minority.

 

...I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best government has no more title to it than the worst. It is as noxious, or more noxious, when exerted in accordance with public opinion than when in opposition to it. If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. (231)

 

He gives the following independent premises in support of this view:

 

1.       If the suppressed opinion is true, then humanity is “deprived of the opportunity of exchanging error for truth.” (231)

 

2.       If the suppressed opinion is false, then humanity loses "the clearer perception and livelier impression of truth produced by its collision with error." (231)

 

3.       If the received opinion and the suppressed opinion “share the truth between them,” the minority opinion “is needed to supply the remainder of the truth of which the received doctrine embodies only a part.” (232)

 

4.       In the absence of challenges to a given claim (i.e., in the absence of a free debate), the very meaning of a claim tends to weaken.

 

5.       If individuals are not allowed to follow their "intellect[s] to whatever conclusions [they] may lead,” then people (both potentially great thinkers and potentially average thinkers) will be prevented from attaining the mental development of which they are capable.[2]

 

Ultimately, this is a utilitarian argument:

 

utilitarianism (df.): any effects an action has for anyone at all are morally relevant; so when you consider what effects an action will have, you must consider what those effects will be for anyone who might be affected; a good-making consequence of an action is that it increases happiness or well-bring; a bad-making consequence is that it decreases happiness or well-being.

 

Mill is not arguing that we have some sort of natural right to say and think what we want.

 

Rather, he seems to be arguing that humanity will ultimately be happier if we respect absolute freedom of thought and speech.

 

 

[4.3.1.2.] Examining Mill’s Premises.

 

On Premise One.

 

...the opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course, deny its truth; but they are not infallible. They have no authority to decide the question for all mankind and exclude every other person from the means of judging. To refuse a hearing to an opinion because they are sure that it is false is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility. (231, emphasis added)

 

Underlying this premise is the idea that any specific belief anyone has about anything could potentially be false; this is the doctrine of fallibilism.

 

There is no group whose powers of sorting truth from falsehood are so perfect as to render them infallible (incapable of making a mistake).

 

In other words, no group is capable of certainty.

 

Fully to understand Mill’s point, we need to recognize the following distinction between two meanings of the word “certainty”:

 

psychological certainty (df.): a feeling an individual has that his or her belief cannot possibly be wrong, e.g., “I am certain that God exists,” “I am certain that these are the winning lottery numbers,” etc.

 

epistemic certainty (df.): having a belief that cannot possibly be false, i.e., a belief that is absolutely immune to error

 

When Mill says: “To refuse a hearing to an opinion because they are sure that it is false is to assume that their certainty is the same thing as absolute certainty,” he means that those who would deny others the freedoms of thought and expression are assuming that their own psychological certainty guarantees their epistemic certainty.

 

But of course, that is false. It is possible to feel certain that your belief is true, when in fact it is false.

 

 

On Premise Two.

 

...dismissing the supposition that any of the received opinions may be false, let us assume them to be true and examine into the worth of the manner in which they are likely to be held when their truth is not freely and openly canvassed. However unwilling a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that, however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth. (231, emphasis added)

 

Later he describes this same benefit as follows:

 

... the received opinion being true, a conflict with the opposite error is essential to a clear apprehension and deep feeling of its truth. (232)

 

...even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. (232)

 

 

On Premise Four.

 

... the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience. (232)

 

Unless a received opinion is challenged on occasion, people continue to give lip service to the claim without really taking it to heart; e.g., Christians who claim to be guided by the ethical principles of the New Testament but actually behave as if they don’t really believe those principles.

 

 

On Premise Five.

 

Mill's full statement of his fifth premise is as follows:

 

The greatest harm done [by persecution of opinions] is to those who are not heretics, and whose whole mental development is cramped and their reason cowed by the fear of heresy. Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral? … No one can be a great thinker who does not recognize that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead. … Not that it is solely, or chiefly, to form great thinkers that freedom of thinking is required. On the contrary, it is as much and even more indispensable to enable average human beings to attain the mental stature which they are capable of. There have been, and may again be, great individual thinkers in a general atmosphere of mental slavery. But there never has been, nor ever will be, in that atmosphere an intellectually active people.[3]

 

So Mill's fifth premise is this: If free speech, thought and inquiry are prevented, then people (both potentially great thinkers and potentially average thinkers) will be prevented from attaining the mental development of which they are capable.

 

 

Stopping point for Monday March 26. For next time (Friday--no class on Wednesday due to Honors Convocation), read pp.233-37; also, your term paper draft is due Friday.