Freedom of Speech: How Much is Too Much?

Freedom of speech and the press have long been recognized as vital cornerstones of free and democratic government. Nonetheless, it has also long been recognized that these freedoms cannot be unlimited. Even in the United States, with its tradition of ‘free speech fundamentalism’ and veneration of the First Amendment, [See Stanley Fish, There’s No Such Thing as Free Speech (Oxford, 1994), and Teresa Bejan, Mere Civility: Disagreement and the Limits of Toleration (Harvard, 2017)] that freedom “would not protect a man in falsely shouting fire in a theatre and causing a panic" (U.S. v. Schenck). Similarly, although American law gives an extraordinary level of protection to those accused of defaming public officials, publications guilty of “actual malice” (defined as publication of a claim with “knowledge that it was false or with reckless disregard of whether it was false or not”) may be assessed damages in libel cases (New York Times v Sullivan). While its importance remains beyond doubt, recently the primacy of freedom of speech has increasingly been challenged by political scientists, jurists and politicians alike. From long-standing concerns about hate speech [Jeremy Waldron, The Harm in Hate Speech (Harvard, 2012)] to more recent fears about ‘no platforming’ and ‘fake news,’ questions about the just and proper limits to that freedom are being confronted by democratic societies the world over. As Luiz Fux, a justice of the Brazilian Supreme Court and then president of Brazil's Superior Electoral Court, put it in the context of fake news, “Sometimes the excessive concern with freedom of expression ends up violating a more important principle – the democratic principle.” This workshop will bring together scholars exploring the justifiable limits of free speech in “a free and democratic society” [This phrase is quoted from the Canadian Charter of Rights and Freedoms, but has been cited by courts in places as diverse as Uganda, Jamaica, and New Zealand. The European Convention on Human Rights (art. 10) allows limitations on freedom of expression that “are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”] through a number of different theoretical and empirical approaches, including normative, historical, and comparative. By bringing these hithertho divergent scholarly conversations together, it represents a major step forward in understanding and addressing some of the most pressing challenges facing modern liberal democracies. In practical terms, freedom of speech is generally understood to be a “negative right” – the right not to have one’s speech interfered with by another, with that “other” understood paradigmatically as the state. It bars (with some exceptions) all censorship or prior restraint by the state, punishment after utterance, as well as other state actions likely to have a “chilling effect” on the exercise of free speech. [For example, see R. v Zundel. “The danger [of overbroad prohibitions] is magnified because the prohibition affects not only those caught and prosecuted, but those who may refrain from saying what they would like to because of the fear that they will be caught.” (R. v. Zundel, [1992] 2 S.C.R. 731 at 771-772)] The idea of an affirmative or positive right to speech (implying an obligation on the part of the state to provide a ‘platform’ or the means for speech and its dissemination) has generally been limited to cases of access to state-owned or licensed media or the use of state-owned or controlled property. [“The traditional view, in colloquial terms, is that ... s. 2(b) prohibits gags, but does not compel the distribution of megaphones.” Haig v. Canada , [1993] 2 S.C.R. 995, at p. 1035] Historically, the priority of freedom of speech has been justified on both epistemological and democratic grounds. Following John Milton’s Areopagitica (1644), John Stuart Mill and others argued that the ‘free exchange of ideas’ was necessary for the advancement and testing of truth, while democratic theorists inspired by Jean-Jacques Rousseau have long insisted that unrestricted public deliberation and debate were essential to democratic legitimacy through the development, refinement, and expression of the ‘general’ will. Underlying both arguments however are two assumptions: (1) that the principal danger to robust debate is state regulation and restriction of speech, and (2) that, in the sufficiently long run, “the truth will out” [For example, “There is no possible means of obtaining truth, but through permission of error. That method is infallible; because it is a fact, confirmed by the experience of all ages, that when truth combats with error on even ground, it is sure of victory.” James Mill, ‘Liberty of the Continental Press’, Edinburgh Review,XXV (June 1815), pp. 112 -134, at p. 131] – and that this will happen before irreparable harm has been done. Yet both of these assumptions are highly questionable and have been recognized as such for centuries. To begin with, the state is far from the only source of restrictions on speech. Writing in the 18th century, Montesquieu observed that “In absolute monarchies, historians betray the truth because they do not have the liberty to tell it; in extremely free states, they betray the truth because of their very liberty for…each one becomes as much the slave of the prejudices of his faction as he would be of a despot.” David Hume, by contrast, distinguished between the freedom of the press and freedom of speech and favoured the former as less dangerous: “We need not dread from this liberty [of the press] any such ill consequences as followed from the harangues of the popular demagogues of Athens and tribunes of Rome. A man reads a book or pamphlet alone and coolly. There is none present from whom he can catch the passion by contagion. He is not hurried away by the force and energy of action. And should he be wrought up to never so seditious a humor, there is no violent resolution presented to him by which he can immediately vent his passion.” [Essays Moral, Political and Literary. 1742, 1752. Similarly again with Mill: “An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer, or when handed about among the same mob in the form of a placard.” On Liberty, ch. 3 (15)] Both criticisms were echoed by the supposed architecht of modern “free speech fundamentalism,” John Stuart Mill, who warned in On Liberty that the chief threat to “freedom of thought and discussion” was the “social tyranny” of one’s fellow citizens—a phenomenon exacerbated by “the tendency of all opinions to become sectarian [which] is not cured by the freest discussion, but is often heightened and exacerbated thereby.” Recent technological, social, and political developments have made concerns about the assumptions underlying the conventional justification of free speech even more significant. With regard to the question of whether the government is the only (or at least the primary) inhibitor of free expression, the danger of privately controlled bottlenecks looms increasingly large. In contrast to earlier centuries, in which there were numerous newspapers and other publishers and the costs of entry relatively low, the 21st-century publishing industry is characterized by enormous concentration extending beyond print media to include television and radio. For example, Business Insider estimated that whereas 50 companies owned 90% of American media in 1983, by 2011 that number had been reduced to only 6. In 2017, two media companies (state-owned RAI and Berlusconi-owned Mediaset) represented nearly 70% of the Italian television audience. Unless these companies make robust debate a priority, this concentration is likely to seriously constrict the range of views available to the public. Yet the increasing corporatization of media control arguably renders them unlikely to do so, or if they do, to define “diversity” both narrowly and homogenously. For many years, commentators argued that the rise of the internet and social media, by allowing a low cost, easy entry, way for information to be disseminated, would mitigate this danger. For example, what might be described as “quasi-presses” like Breitbart News or the Drudge Report reach large audiences without the intervention of the corporate giants that control the traditional media outlets. While true, however, still the result is not robust debate, but rather a marked trend of ideological “silo-ing” in which like-minded partisans isolate themselves in self-referential and reinforcing media echo chambers. Here, the internet and social media heighten the dangers identified by Mill already in 1851 in three respects. First, the sheer volume of communication makes it easier to home in on things with which one already agrees, and to ignore anything that challenges those predispositions. Second, the speed and near simultaneity with which ideas can be spread (the phenomenon of “going viral”) in many respects makes social media communication akin to speeches made to an “excited mob” – and a much bigger mob – than those with which Mill (and Hume) were concerned. Third, all of this takes place without the intervention of a “responsible” editor, often anonymously, and without the informal social control that is characteristic of real, as opposed to virtual, social interactions. The volume of “fake news” is dramatically increasing while the capacity of citizens to distinguish true from false is decreasing, in part because the arbiters of truth have themselves been compromised. A third development is recognition that the underlying assumption of the “free speech and press promote the search for truth” argument (or rather, theodicy) – that people are rational seekers of truth rather than “erratic and irrational fellow[s] susceptible to manipulation by skilled humbugs,” [V.O. Key (1966: 4). Note that Key was arguing against this characterization of citizens] whose judgements are based on psychological and emotional comfort rather than factual analysis and logic – has come under increasing pressure. Recognition of this fact has, of course, been the fundamental premise for the marketing of products at least since the mid-19th century. Still, while complaints about the “marketing of candidates like soap powder” hint at marketing’s relevance to politics, the major thrust of academic studies of election campaigns has continued to emphasize policy proposals, ideologies, and candidates – in the evocative terms of Elmer Wheeler in 1947, to focus on the steak rather than the sizzle. [“DON’T SELL THE STEAK – SELL THE SIZZLE”, Elmer Wheeler, Tested Sentences that Sell (1947)] But while scholars have apparently maintained their faith in what Achen and Bartels (2016) call the “folk theory” of democracy [“Ordinary people have preferences about what their government should do. They choose leaders who will do those things…”], both political consultants and the politicians and interests they advise have become ever more effective at manipulating electorates and the media alike.