Contents

  1. Sticks, Stones and Spoken words
  2. No such thing as free speech?
  3. The Harm principle
  4. The Offense principle
  5. Slippery Slope
  6. My opinion
  7. Reference

Sticks, Stones and Spoken words

“Sticks and stones may hurt my bones but words can never hurt me.”

– An American proverb

Imagine a society where in a national daily an advertisement shows an artistic image of a young naked couple holding each others’ genitals and yet the newspaper board or the advertisement agency face no complaints nor prosecution from its subscribers or readers. Imagine again in that very society a blogger that seriously condemns and profanely ridicules an established faith system with art, offending a certain group of believers, can live every day without the fear of being attacked physically and can sleep well at night. Imagine that out here movies and documentaries are uncensored and the viewers themselves filter to avoid what they do not want to watch or hear. Comedians can make fun of anything and people simply choose to watch it or not; even if they do watch and not like it they can shrug off and walk away.

Academics and philosophers in this hypothetical society can freely present and exchange ideas on even the darkest of cultural taboo and still not be legally accused of violating moral standards. People here can freely ridicule the government to the point of making anti-national remarks and still not be punished. After expressing their views in one way or the other, no one is harmed, neither legally nor psychologically not at all physically. Two or more consenting adults of any sexual orientation whatsoever can freely have sex anywhere they want to, even on a public park, and they won’t be taken into custody. People here, imagine, have the guts to offend, the strength and courage to withstand offense and the nobility to understand and value the freedom of expression. In such a society the proverb above can be effectively satisfied in practice.

death-of-socrates-AB
Socrates, one of the first proponents of free speech during antiquity, was sentenced to death for criticizing Athenian democracy and praising Sparta, Athens’ arch rival city, after their defeat to Sparta and its allies in the Pelloponesian war.

Now would such a society ever exist? It’s hard to tell, as any human society is a dynamic model of organization and is in a constant state of flux in one way or the other. We can surely estimate the course a certain model of a society takes, but never determine accurately as to how it will look, say a hundred years from now. Does such a society, with no restriction on speech whatsoever, really exist? In accordance with reality, I’ve got to say: Nope! No society has ever existed in the past nor have they at present, that do not limit expression or speech in one way or the other.

Some may argue about many western nations being epitomes when it comes to absolute freedom of expression and speech. But the reality again, is pretty different.

Even the United States, whose constitution is one of the first in the world to endorse and protect free speech through the first amendment, has exceptions to free-speech when it comes to speech threatening national security, incitement, condoning child pornography, libelous speech, copyright/plagiarism, commercial secrets/speech, and violation of government confidentiality pact and espionage. It’s apt to use the US as an example because both the government and majority of the populace proudly advocate freedom of expression and free-speech. (Evidently as per one Pew research, surveyed US population were the most accepting of free speech on average, when compared to other nations.) 

Many big European nations like France and Germany also support and advocate free speech in theory. France, out of the lot considers itself the beacon of free expression and rightfully so given the rich culture of unrestricted or seldom censored art and cinema the French produce.  But it is fair enough to say that even they restrict speech when it comes to hate speech, libel, holocaust denial and anti-Semitic expressions (take for example the sanctions imposed on footballer Nicholas Anelka when his goal celebrations resembled an anti-Semitic ‘Quenelle‘ gesture). Germany also goes on further to ban baby names such as ‘Hitler’ or ‘Osama Bin Laden’, be it for them to save the child from being bullied or ridiculed for bearing weird names, but it technically still amounts to an act of limiting speech.

Views of Free Expression Worldwide
A spring 2015 Pew research on global attitude towards free speech which shows that surveyed people in the US were more accepting of free speech with relation to the other 37 countries that were also surveyed.

Through this essay, as a consequentialist, I hope to surgically examine the very concept of free speech. To do so, we need to first remove any biases we have both in favor of and against free speech; also in order to encourage a sensible discussion on the topic. I will be discussing whether or not free speech needs to be absolute and whether or not the principle can be said to be another dogma as many of its opponents claim.

No such thing as free speech?

“If liberty means anything, it means the right to tell people what they do not want to hear.”

– George Orwell

Consider the quote above. In the liberal sense, being able to speak and to express oneself without restriction or restraint seems to be the core philosophy of freedom. Typically my secular and liberal friends might argue in favor that it would be better and easier to challenge established notions and belief if speech were to be completely unrestricted. Others might want to doubt this and even go on to say that “too much freedom may not be a good thing”. We can find valid points in both sides of the argument. Coming back to Orwell’s quote above, I think he may even be overstating as most writers in their aphorisms often tend to do so. It may be a good rhetoric to defend free speech, but in a sensible argument may not stand so strong to prove a point as it misses out on the drawbacks completely.  The word Liberty, in my opinion, has been vaguely described by Orwell as it doesn’t consider the possibility of ‘the right to tell people what they do not want to hear’ ending up in harming people. Liberty can be perceived differently by different groups of people. To point out the bias, he very well seems to have perceived it from a liberal western standpoint, one which other cultures may not be able to visualize in a similar manner. So being only defensive, I believe, may not be enough to rationally discuss the very concept of free speech.

Freedom is important, but to what extent? Free speech is an appealing driver of liberal values, but again to what rational extent? How can we make a distinction as to when freedom to speak may amount instead to the freedom to act? It is important that we try and answer these questions and it is equally important to recognize the point where we can draw lines and how we can do so. Keeping this in mind, we first need to realize the fact that when it comes to free speech, it will always be limited in one way or another whether we like it or not. I’ll explain, but it is very important to read the entire essay before reaching towards any conclusion. Leaving it half-way might only help misinform you.

What use is free speech to Robinson Crusoe?

Now consider this open-ended question posed by the sub-heading. What use indeed is free speech to an individual like Crusoe who is stranded on a deserted island all by himself with no human companion anywhere nearby in order to start a conversation? He can shout out all he wants into the ocean, even talk to himself, but for whom to listen?

I’m using this analogy to help me explain that speech always takes place in some social context. Speech is typically made by humans for other humans. Otherwise it could be rendered socially worthless. Speech is constantly influenced as well as dependent on some social situation. It’s very important for us to grasp this concept. Being an essential part of Human interaction and communication, speech is always limited, consciously or subconsciously. Many times beyond our control no matter how much we try not to. At this point however, it is vital for us to not confuse what I’ve just said with subjugating our voice to established social values. Which, of course I personally do not endorse. I’ll clarify later in this essay.

Context of self-limitaions

Here are some minimum situations where speech is always best self-limited (obviously this is not an exhaustive list):

Organized discussions. Whether you are liberal or conservative, whenever it comes to formal debates or legal proceedings, speech will have to be limited for the sake of order. Otherwise the whole setup would become a verbal pandemonium; i.e if everyone started speaking all at once, whatever they wanted whenever they wanted. There would literally be chaos.

Professional disciplines. It would be impractical in any hierarchical organization, say for instance in military, if the institution were to adopt freedom of speech and carry out their free will and not follow orders. Or say in a corporate or the health sector where employee or staff have to follow a chain of command for the company/institution to function systematically. You’d definitely not choose to make an offensive video of your professor or a colleague for a presentation as it would not lead to a sensible discussion in the professional sector but would instead create a diversion not constructive to the professional purpose. You very well can, but you simply won’t. Outside of it, maybe you may.

Courtship. Even if you are an advocate of absolute free speech, you’d often choose your words carefully on a first date! You may notice initially that your partner has an ugly mole on their forehead which you think is disgusting. But you choose not to point that out loud as it may offend him/her, for you to want a successful date night; with the exception of course if you know that your partner wouldn’t mind. So in this particular social context, your intention is usually to impress your date for the purpose of courtship so you chose to restrict speech by yourself. Of course we are not talking about the exceptions in the form of frank relationships.

Confidentiality and Contract. You sign a legal document or a formal pact with a party so as to not disclose a harmless yet vital company/organization plan or recipe for the sake of doing business/work. For example, employees are mostly bound by contract to not leak company secrets, if they do then they may be sacked for violation of a contract. To give another example, doctors usually restrict speech and maintain privacy when it comes to sensitive patient information and patient’s want of confidentiality, only except for the purpose of privileged communication where they can discuss cases with their professional colleagues, maintaining privacy, if it’s a matter of academic interest or is that of a public health concern. Of course both the scenarios may be subject to change if it’s got anything to do with public security, health or collateral damage.

This was to say that speech is as natural to us as we have the vocal cord and we always tend to let it loose or even limit with relation to the social context at hand, usually expecting a certain social response in return. We also need to note that although we always do not speak whatever we want to; we are, however, always free to speak as we like and even liable. We are free to think as we like to and obviously no external force can stop us from formulating a thought inside our heads.

No matter what our thought is, we come to deal with other people only after we express it. Speech, like thought, is indeed free in the biological sense. And unlike most actions, it can technically never be prevented by an authoritative figure. For example, if any authority wants to put a ban on cell phones for some reason they could simply ban imports, take down cell towers, close down service providers and destroy existing phone units. But any authority can never make it practically and completely  impossible for people to speak out their minds. For that they’d have to either suture people’s mouth shut or simply remove the part of the brain responsible for speech and communication! Action is always taken on the speaker, if any must be, only after they have spoken or expressed themselves. They could be punished retrospectively, but never practically in prospect! In simpler words, no one can prevent you from crying out “Fuck” in the middle of a school assembly. However, action may be taken on you only after your teachers have heard you saying that out loud.

Some of the context in which a person is compelled to limit speech against will have been listed below (These are most of the time problematic and are liable to initiate violent conflicts or may result in tragic loss of lives):

At Gun point. If you are kidnapped by an unknown group with an unknown motive and they put you at gun point, then you might yourself choose to restrict your choice of words wisely to try and reason with them as much as possible in order to try and survive. If you mock them and question their courage or provoke them, then maybe you may have lesser chances of finding a way out of it. Here, you have every right to criticize them but you’ll choose not to and limit speech voluntarily if you want to guarantee your safety.

Fear of government/authority imposing sanctions. Many people, even if they feel right, do not speak out their opinions and do not express themselves for the fear of being prosecuted by authority.

Fear of public prosecutions, sanctions, ostracism, and outrage. Many people, even if they feel right, do not speak out their opinions and do not express themselves for the fear of being prosecuted or ostracized (i.e fear of being called and wrongly labelled racist, sexist, ‘islamo-phobic’ or in case of Nepal ‘Anti-Madheshi’ or ‘Anti-Janajati’) by the public or the socio-cultural group of which they are a part of. This can also be called political correctness.

At last, two fundamentals present themselves whenever we come to discuss about free speech.

  1. No one can stop us from speaking, but ourselves;
  2. Even though we can speak whatever we want to whenever we want to, we usually don’t, in relation to the social context at hand.
    • The social context can be those where establishing a positive rapport/relationship is personally important or essential.
    • Sometimes, we limit speech out of fear for our safety and social well-being
      • Fear of the government/authority.
      • Fear of public prosecutions or sanctions.

So far, one thing is almost certain. There is indeed such a thing as free speech, but it seems very likely that there could be no such thing as absolute free speech. Now let’s move on to the next segment.

The Harm Principle

Many philosophers, leaders and lawmakers over several years have tried to provide solutions to the free speech conundrum. One successful figure of them lot is definitely John Stuart Mill through his 1859 book On Liberty. He was an English philosopher, who defended free speech but also simultaneously introduced the concept of the Harm principle. He states:

“If the arguments of the present chapter are of any validity, 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.” [Chapter II, On Liberty]

By this, he clearly defends speech by telling us that it is best if any idea is allowed to exist, no matter how offensive or immoral they may be considered by the contemporary zeitgeist (social time-frame). He further adds:

“If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing (the majority of) mankind.”

He suggests that it is best if we allow even one dissenting individual, let alone a group, to voice their concerns or disapproval. He argues that there could always be a possibility for that one person or the minority to be correct in place of the majority. He believes such is the value of speech that not even one voice deserves suppression as every idea could be precious at some point of time even if not at present. And this notion is to some extent appealing because any kind of social progress definitely means offending or dissenting some kind of deeply held sentiments. We can look back, for example, at the wide prevalence and acceptance in human history of slavery, witch hunts, apartheid, prosecutions of homosexuals, discriminatory voting rights, imperialism and in Nepal’s context dowry and Sati pratha (burning alive of newly widowed women along with their deceased husbands); all of whose value have become next to obsolete at present. Maybe because some people (or person) at some point in the past dared to question them.

John_Stuart_Mill_by_London_Stereoscopic_Company,_c1870
John Stuart Mill (1806-1873)

On the contrary, Mill also suggests in Chapter 4, Of the Limits to the Authority of Society over the Individual, that there needs to be some sort of regulation on speech within a society for it to function systematically. He recommends putting restrictions on speech in order to prevent harm, to the speaker as well as others.

“the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” [Chapter IV, On Liberty]

One famous analogy Mill uses in his book to explain the Harm principle is that of the Corn dealer. He suggests that while it may be acceptable to accuse through media that a particular corn dealer has been starving the poor. It may not be acceptable, however, to make the same claim in front of an angry mob outside the corn dealer’s house who cannot be controlled and are in the verge of storming into his residence and lynching him. This is because the latter statement could very well result in harming the corn dealer. So it is best to limit speech such as in this context to prevent harm. Go back to the part where I had mentioned that at gun point, you are mostly bound to carefully limit your choice of words and thus speech for the sake of your own safety. While that was yourself limiting your own speech, Mill, on the other hand, is advocating for restrictions to be imposed by an authority on such harm-prone speech.

Speaking objectively in his terms, freedom is rationally best limited when it comes to the issue of harm. No matter how progressive we are, when it comes to harming others or ourselves we usually tend to draw a line and righteously we should. But we need to be distinct on whether we are talking about the freedom to commit or the freedom to speak; and also be clear with our definition of the word harm.

Argument on applications of Mill’s Harm principle

It would be fair enough for me to say that the harm principle in itself is not sufficient to regulate speech. Some argue that Mill’s definition of ‘harm’ is very vague and brief, when in fact it should have had a broad array of meanings. Mill does not go into detail to discuss what exactly he means by the term ‘Harm’. His focus appears to be more on physical harm and he tends to leave out economic, psychological as well as legal harm. To counter Mill’s narrow definition of Harm, one could counter his very corn dealer analogy, and say that accusing the corn dealer through media that he starves the poor, without substantial proof, could indeed harm his business and result in harming the corn dealer and his family financially and maybe even psychologically. Mill has failed to recognize other forms of speech such as libel, incitement, blackmail, dishonest propaganda and hate speech that may have the potential to do more harm than good.

So anytime we try to apply the Harm principle to limit free speech it is vital to ask ourselves “what type of speech can actually cause harm?” To improve the argument on behalf of Mill’s harm principle, we could very well broaden the definition and go on to say that any speech or action that is liable to violate someone’s basic human rights could be said to be Harmful. So in this blog, for simplicity, violation of someone’s rights, is considered Harm. In that way we may argue effectively.

Applying the harm principle on Pornography

Pornography is censored or prohibited in most parts of the world as it is considered obscene and immoral by many. This is indeed a very good example for us to discuss and understand Free speech and the Harm principle. Now as morality is a dynamic concept, always on the change, it could be inconsistent with the harm principle to ban pornography on moral grounds as one person’s perception of an act as moral may not fit into someone else’s book of morals and offending someone may not be considered as harm as it may not violate the rights of the viewer. We also need to take into consideration the fact that some speech that is offensive to someone, might be amusing to someone else. Next clause is obscenity. People may find pornography obscene, but pornography is intended actually to cause sexual arousal in the audience or subscribers. And similarly, someone finding it obscene may not amount to harm as per Mill.

Alternatively, one could argue that pornography violates especially the rights of women and maybe even minors who may be forced to have sex before the camera. Categories such as revenge porn, Voyeur and ex-girlfriend porn may also violate someone’s right to privacy. And there are sex slaves and trafficked sex workers who may be forced into the porn industries as has happened in places such as Thailand and India. Rights are violated as people may have been forced, compelled, blackmailed or tricked into porn. So as per Mill, it may be okay to limit porn as it appears to violate someone’s rights in some way. In that sense we could also argue back that it may be better to regulate the industry itself rather than to ban it because there are also individuals who voluntarily participate in the industry as they can see the increasing demands and maybe even good income, and it may be next to impossible to filter out which porn is violating the rights of which actor/porn star and which isn’t.

It is also very true that in places where pornography is strictly restricted by law, the industry has not perished completely but have managed to flourish, although in a criminal manner; therefore giving rise to a vicious cycle of organized crime and human trafficking. It’s a case similar to America’s ‘War on Drugs’ and the debate on whether recreational drugs should or should not be banned [Video by Kurzgesagt]. Regulating the industry may filter the violation of rights gradually while at the same time might provide a safe, healthy, taxable and standardized platform for the interested to take part in and even for those who demand pornographic content.

On the other hand, almost all of us, including liberals, certainly would object to child pornography as it deals with violating the rights of people under the age of consent. But what if there are over-age actors portraying underage characters in porn? What then? Rights are surely not violated in such cases (again it is difficult to ascertain who, what, where, when and how), and the only issue remaining is of such content offending our moral standards. The harm principle applies here only if actual children are involved and not if overage actors playing the part of children are. And to filter wrongdoing, again regulation (as in compulsory regulation by registration of all porn actors, directors and producers), rather than ban seems appropriate.

Based on Mill’s harm principle, people finding such materials offensive, repugnant, immoral or obscene are not considered valid grounds for banning pornography altogether.

Applying the Harm principle to hate speech

After reading through many papers and articles and going through many discussions on free speech, I have come to realize that Hate speech is one tricky area when it comes to discussions on free speech and censorship laws.

It’s difficult to justify against hate speech in a Millian manner because most of the time hate speech may not be associated with direct harm or violation of rights. For instance if some child at school yells out profane and racist insults at another child, then according to the Millian way, it would not be considered a direct harm to the child as the child is physically intact and his/her rights have not been violated. Like I’ve already mentioned above, Mill clearly does not consider the psychological burden of this speech on the targeted child. He does not consider the possibility of that child’s self confidence being hurt by the hate speech and as a consequence, him/her suffering in grades and performance in school.

Many might like to exclude hate speech towards children, from being protected. Simply because such are aimed at people who are not emotionally and psychologically mature enough to handle criticism or insult. In that sense, maybe banning weird baby names in Germany may be for a valid reason, to prevent psychological harm in children by preventing ‘possible’ bullying or harassment. But again in terms of Mill, it may not constitute as harm. (Some may even argue that it would be better if we actually popularized the concept that bullying and harassment is wrong, instead of banning names). It may be the case, if we can clearly show that the child has been harmed psychologically, but how can we again ascertain that for every individual who comes under some kind of hate speech? Not everyone show signs of an upset psyche.

At this point, some may even argue that it is better to teach our kids to face critique and face their problems in a tolerant and rational way than to be emotionally weak and break. But on the other hand, while this way might be effective for many, we also need to acknowledge the fact that not every child is psychologically equipped for this. We could start a whole new debate, but that is beyond the scope of this essay. Unless and until we are able to show that the child’s rights have been violated, the state (in this case school authorities) cannot impose sanctions or punishment on the speaker as per the Harm principle. And even if we do sanction the speaker, it will always be retrospective and the damage already may have been done.

Quenelle_liste_anti-sioniste
M’Bala M’Bala (center front) posing for his anti-zionist campaign by making a Quenelle Gesture.

So clearly the Millian way may not look like the best way to approach the free-speech conundrum as it may not be able to tackle speech causing harm that is not physical. Critics of the Harm principle usually state that it is too narrow a standard upon which to set limitations to speech.

Let us consider hate speech in the context of stand up comedy still applying Mill’s reasoning. For example in the case of a French Comedian Deudonne M’Bala M’Bala who made a statement that he’ll stuff Quenelle up every Zionist’s backside and popularized the ‘Quenelle Gesture’ (shown above) which many considered to be anti-semitic. Due to his comedic statements, he has now been banned in France from making any sort of public appearance. A simple act of offending a particular group with a gesture has led to this man being barred from performing in the public.

If the Millian principle had been applied here, then M’Bala may not have faced prohibitions as a hand gesture does not necessarily violate rights or cause harm to the audience or property. It just offends a particular audience, in this case orthodox Jews and Zionists, which according to Mill, is not to be considered into the inclusion criteria for limiting speech by authority or government. Here, the argument from the psychological harm clause may not apply as it is not directed at an individual but rather towards a community. But technically, there is a problem in banning M’Bala M’Bala, as Anti-Zionism is not always necessarily antisemitism. This can be seen by the presence of significant Anti-Zionist Jews across the globe as well. So all in all, M’Bala M’Bala’s punishment seems irrational in this sense as clearly, the offense taken was relative.

anti-jews
M’Bala M’Bala’s ban was questionable as not every Zionist is a Jew and insulting Zionists does not necessarily insult Jews.

So we have come to learn, I hope, that the Harm principle as proposed by John Stuart Mill may not answer all the clause and loopholes within the free speech argument, but it sure does help in some scenarios nonetheless. The main point of it all being in order to set an inquiry as to when a government of a free society can take action on an individual for the things he/she have said?

In a nutshell, it could be fairly said that the Harm principle fails to address most of the emotional and psychological aspects of the argument (as in emotional upset such as dejection or offense). Whether this is a good or a bad point is rather subjective.

The Offense principle

Since the harm principle set the threshold for limiting speech too low, another notable philosopher, Joel Feinberg, came up with his own kind of solution to this puzzle. He introduced the offense principle, mostly as a guide for the public to react to various forms of expression and for authorities to decide and set standards as to which kind of speech needs to be restricted. Many may not agree with Feinberg, but let us examine the Offense principle from both the sides just as we have done that for the Harm principle above.

If we consider physical harm like Mill does, then maybe freedom to commit is better limited but it won’t still be clear why would it be reasonable to limit speech? Does speaking by itself harm people? If it does then how do we draw a line as to what indeed is harm and what is offence? If there is harm, what makes up direct or indirect harm? It’s important for us to try and answer these questions. And with the offense principle, Feinberg has at least tried to answer them.

To sum up his principle, he proposes a solution in which he claims that in order for us or the authorities to be able to limit someone else’s speech, some factors must always be taken into account. Restrictions should depend on:

  • Extent of the speech
  • Social value of the speech
  • Motives of the speaker
  • Number of people offended
  • Intensity of the offense
  • General interest of the community at large; or for the ‘greater good’
  • Avoid-ability of the speech; i.e the ease with which it can be avoided, which remains the most important factor of them all

Now these points are surely debatable but they sure do help to solve certain problems and loopholes in the free speech conundrum. At other times, they seem too far-fetched and rigorous when it comes to restricting speech.

Argument on application of the offense principle

Like I have mentioned before, speech cannot be prevented but actions on the speaker can be only taken retrospectively. Now an authority or a society can surely try and make it more difficult for a person to express potentially offensive ideas by imposing sanctions or by simply threatening prosecution. This is usually done with the assumed logic that if we make it difficult for someone to express contrary or offensive ideas, it will be less likely for them or others like them to express offensive ideas or to make offensive public statements.

But history has shown often that imposing restrictions and sanctions on people who express dissent does not necessarily stop them or others like them from expressing restricted but shared ideas. Take for example the various revolutions across the globe for independence from imperialism and colonialism, take for example the Arab spring, the civil rights movement, suffrage movement, anti-apartheid movement, existence of atheists in Saudi Arabia and Bangladesh even amidst the threat of severe punishments and death, rise of progressive voices in Iran and the like (and in case of Nepal the fall of Monarchy and rise of the Republic). All happened because the authorities (or the public) failed to suppress speech entirely. That is why ‘avoidability‘ of speech is proposed as an important factor by Feinberg. In a nutshell, if you don’t like someone’s expressed opinions or ideas, simply avoiding it will prevent offense. In this way, the person expressing it is pardoned of prosecution. The person likely to be offended may not be offended if the content can be avoided.

Feinberg elaborates the avoidability factor very eloquently with the ‘book analogy’. He argues that books need not be banned as they are very easy to avoid. If you do not like a genre or a particular writing, you can avoid it instead of calling for the book to be banned, because there is always the possibility that some others might find it amusing or appealing.

But some people are offended just because of the knowledge that this book ‘exists’. But Feinberg has put forth that being offended by something that is avoidable is supposed to be logically less serious than being offended by something that is not avoidable.

Bare knowledge does not seem to be sufficient grounds for us to ban something. We will look into it in detail below.

Applying the offense principle to pornography

Similarly, let us apply the offense principle to pornography. Extent of pornographic material: At this age of the internet, it’s very extensive and widely and easily available. Social value: Not put in high esteem but the audience who ask for porn are usually the audience who want to be gratified by such content and most of the time meaning no harm to others whatsoever. Motive: To cause arousal in the targeted audience. Number of people offended: Many, depending on the context (more people are likely to be offended if porn is displayed out in public hoarding boards). Intensity: Variable. Some porn watchers might consider erotic coupling not offensive while incest or BDSM genres may be offensive to them. Many may consider all of them offensive. Some may be offended by the usual objectification and demeaning portrayal of women in porn as ‘sluts’ or ‘whores’. General interest of public at large: Porn industry when regulated is less likely to do much harm to the public than when not regulated. When porn is banned, the industry may go underground and may be devoid of proper regulations which may possibly lead to surge in organized crime and human trafficking rates. Avoidability: Very avoidable!

So according to the Offense principle, porn need not be banned completely if it is allowed only up to private use and not displayed openly in public. That would avoid many people from being unnecessarily offended; pornographic contents still being legally available for the interested to access in private or in groups of significance. It gives room for effective regulations as well as legalization of the porn industry.

Applying the offense principle to hate speech

Let us take Adolf Hitler’s autobiography, Mein Kampf, for example. Similar to that on pornography, the question arises whether it should or should not be banned. Taking the Avoidability factor into consideration, it is very easily avoidable. When talking about the speaker, the motives are clearly xenophobic, racist and antisemitic; some may argue that such works will inspire a new generation of Neo-Nazis, but we cannot know that for sure and it may be better left for the readers to decide. There is always the possibility that some want to read it just out of their intellectual curiosity or to simply study about a notorious dictator. And also as discussed above, that bare knowledge is not sufficient grounds for us to ban a book, the Mein Kampf very well should also avoid being banned.

But let us take a scenario when a person keenly dresses as Adolf Hitler and shouts out Antisemitic insults towards the settlers and advertises Mein Kampf through a loudspeaker in a predominantly Jewish settlement. Now let us again consider the above mentioned factors with relation to this case. The extent of this speech is such that it is aimed particularly and specifically at the Jewish settlers. So the offense that is done is more acute even though the number of people affected is relatively low, but the intensity of the speech is high as it deals with propagating direct hate. Social value of this speech is very low, it would be clear that the settlers would not want to hear such speech and that it would not contribute towards a constructive argument. Likewise it’s not of much use when considering it even in terms of the general interest of the public at large as throwing out insults will in no way benefit the public. The Motive behind this speech is clearly hateful. The speaker is intentionally trying to spread hateful remarks.  And lastly when talking about its avoidability, this kind of speech is very difficult to avoid.

When we assess the above scenario from Feinberg’s perspective, it looks better to limit hate speech than to not. So it could be said that the Offense principle allows us to limit something that causes immense emotional and psychological upset and cannot be easily avoided. Avoidability of the expressed content is clearly the backbone of the offense principle.

Slippery Slope

But not everyone is in consensus. There are those who are concerned about limiting speech and those who are concerned about not limiting speech at all. Even though the kind of speech has changed along with our changing moral values, this debate has persisted from the very beginning of the concept of Democracy.

There are those at one spectrum who argue that imposing any kind of limitations on speech will make it easy for a society to slip into censorship, tyranny and fascism; hence they believe there should be no limitations imposed on speech at all. Then there are those at the other spectrum who argue that not limiting speech will lead to an inevitable slip into chaos, anarchy and lawlessness.

Both such spectrum can be fairly said to be ‘slippery slope’ arguments. A slippery slope argument is any such in which people argue that when one idea is allowed to happen then a particular consequence is bound to occur so that idea should not be allowed in the first place. Here at the two spectrum, the idea is either limiting speech or not limiting speech at all.

The problem with such reasoning is that they avoid sensible discussions about the practical issue at hand by diverting attention towards extreme hypothetical situations behind which there seem to be no credible evidence. Because those who do argue from such extremes, at either end, often do not have sufficient evidence to demonstrate that limiting speech will make us slide towards tyranny or either that in not limiting speech we are slipping into anarchy and chaos.

Such argument will never bear any fruit for us to reach towards a solution. It will just stain an otherwise sensible discussion and sway it into an unsubstantiated conjecture. So it is vital to always argue from the middle-ground, not being biased towards any pole.

My Opinion…..

Now where do I stand on this? Frankly, I should say that I do not know!

I wouldn’t want to be too deterministic on this subject matter as a whole. What I can say for sure, after studying about it, is that the debate on whether or not we should impose restrictions on speech (or any form of expression) is not static. Just as our social, moral and ethical values are not static. We can never have a ‘one-time-discussion’ that settles everything.

Personally, however, I’d like to take into equal consideration, both the Harm as well as the Offense principles. There is no ‘one or the other’ logic for me. I think Stuart Mill is able to explain the limitations on speech based only on harm (i.e violation of rights as in physical, legal harm) and Feinberg is able to elaborate on the deficits of the former and to effectively propose a solution in the form of the Offense principle. People do consider these two principles mutually exclusive, for some people it’s either Mill or Feinberg which I think is rather naive. I’d rather consider them two mutually inclusive subsets of the same whole. I’d like to put it this way: If we could compare speech to a democratic constitution, Mill’s harm principle can be said to be one main ‘article’ and Feinberg’s Offense principle could be said to be the necessary ‘amendment’ in order to move forwards.

Another area that is rather tricky when it comes to speech, which I have chosen not to discuss in detail just to shorten my already lengthy essay, is Political correctness. The scope of this essay was indeed just to deal with the debate on whether or not to impose limitations on speech. Sometimes, political correctness may also undermine the real issue at hand, but in this political world, of slick diplomacy and tactics, some may even consider it useful and necessary. This, I think, should be a whole new topic which needs to be examined from both sides and maybe an inspiration for another of my essays. But let us not go into it in detail for the moment.

In the end, I hope I have been able to examine freedom of speech effectively in spite of my professional and intellectual limitations on the subject. Speech is as important to us humans as it is inevitable. Any sanction can only be imposed upon the speaker retrospectively, but sanctions cannot effectively ever be prospective. Consider this quote below.

“The paper burns, but the words fly away.”

~Akiba ben Joseph

I am also clear that it is worthless to have a discussion on the value of speech, if we first do not look at it from a social context. As stated above, a man stranded on a deserted island can have absolute freedom of speech, but when you pick him up and place him in a community full of people, absolute free speech seems less relevant. As I have also mentioned earlier in this essay, speech is always rationally limited in one way or the other depending on the values of a particular society and the time-frame in which it exists.

Another necessary thing is, for this debate to never really end. We should always be able to talk about it openly in an unbiased manner. Some may say that to be able to speak about speech openly, there first needs to be the guarantee of free speech, which I agree with, nonetheless. So my whole essay is void, unless we consider it from a progressive democratic perspective, which would allow such discussions to take place at all. This is to say that the discussions in my essay may not be valid in an autocratic, theocratic, feudal, despotic or a hegemonic society which usually suppress dissenting and contrasting ideas and opinions.

But the discussion here is not only about censorship, it’s also about how to ‘draw a line effectively’ in order to limit or not to limit speech. This ‘line’ we are talking about, is most of the time rather obscure if not vague and constant rational discussions are always necessary to dilute any polarity that may arise if one extreme overpowers the other.

As a skeptic, I would propose that even free speech itself should be questioned just as censorship also necessitates questioning. For me (as I often say through my blogs), no question is a stupid question, no idea is above criticism and no human life is below dignity.

“You can cage the singer, but not the song.”

~Harry Belafonte

Reference

  1. Where the world sees limits to free-speech (PEW research Agency)
  2. Freedom of Speech – Wikipedia
  3. Freedom of Speech: Stanford Encyclopedia of philosophy
  4. The Diane Rehm Show
  5. Freedom of Speech vs Cultural Sensitivity (Rukshana Khan) IBBY World congress [PDF]
  6. Culture and Self Expression (American Psychological Association)
  7. Shut Up India: Free Speech is failing in the world’s largest Democracy (The World Post)
  8. Why a Free Speech Fight is causing protests at Yale (TIME/US)
  9. Global support for freedom of expression, but opposition to some forms of speech – Pew research
  10. History of Freedom of thought – Critical Thinking Community
  11. Spark Notes: On Liberty
  12. On Liberty by John Stuart Mill: Chapter 2 (1859)
  13. On Liberty by John Stuart Mill (1859) [PDF]
  14. Truth about porn stars – Live Science
  15. International Jewish Anti-Zionist Network (IJAN)
  16. Why I am an anti-zionist jew

[Disclaimer: For most of my essay, I have decided to outline my thoughts in a similar style as that in the Freedom of Speech entry in Stanford Encyclopedia of Philosophy. This is because I found the structure appropriate and suitable for my effort to explain the arguments surrounding Free speech in my own simplified language. I am also assuming the possibility that my audience may not be well aware of the Harm or Offense principles. You could also fairly say that this essay is a kind of simplification of the SEP one. All thanks to the Stanford Encyclopedia of Philosophy team as they constantly try and explain numerous philosophical puzzles, standoffs and hurdles in an unbiased manner.]

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s