Free Speech. Jonathan Seglow

Gilmore, for example, has argued that articulating our views to others is part of the very process of coming to form and understand our own ideas, judgements, opinions and beliefs in the first place (Gilmore 2011; cf. Garton Ash 2016, pp. 73–4). Likewise, the American philosopher Seana Valentine Shiffrin sets out a number of interests people have, namely in theoretical and practical thought, in exercising their imagination, in becoming distinct, authentic individuals with identities of their own, in acting as responsible moral agents, in living among other people, with all the mutual social influence that this involves, and in being recognised by others as persons with their own views (Shiffrin 2011, pp. 289–97). Like Gilmore, she also posits an interest in understanding the contents of our own minds. All these interests require free speech for their realisation. Shiffrin categorises her theory as belonging to the autonomy family (pp. 283, 297–303) but, unlike in the sectarian version of that view, her interests involve ‘sparer assumptions’ (p. 298), which seem more genuinely universal.

Free speech and democracy

The connection between democracy and free speech is intuitive. One cannot really imagine a democratic society without reasonably widespread free speech, and empirically democracies invariably do a better job of protecting free speech than dictatorships. Free speech in the public sphere enables parties to assemble coalitions of supporters, allows the opposition in legislatures to cross-examine the government, helps to mobilise protest movements, and gives citizens the liberty to criticise governments and to seek to shape public opinion. These more specific connections can be interpreted in consequentialist terms. On this view, free speech is a necessary instrument that allows democracies to flourish; without it, democratic life withers away. There may be something to this argument, but free speech seems to be a constituent of democratic culture, not merely an instrument to achieve it: democracy and free speech are not analytically separable in the way in which truth and free speech are in Mill’s consequentialist argument. Hence the connection between democracy and free speech seems deontological more than consequentialist.

The first writer to make explicit the connection between free speech and democracy was Alexander Meiklejohn, in his 1948 book Free Speech and Its Relation to Self-Government. Like other US scholars after him, Meiklejohn was concerned with interpreting that country’s constitutional tradition. From the 1776 US Declaration of Independence he drew the lesson that no one should be called upon to obey a law unless he or she (originally, of course, only he) had a share in making it (Meiklejohn 1948, pp. 10–11). Being bound by laws that limit your liberty, when those laws arose from a process in which you had a say, is legitimate in a way in which being bound by laws that emanated from elsewhere is not. Meiklejohn was impressed by the vigorous political debate practised in local town meetings in New England in the north-eastern United States, a tradition that continues to some extent to this day. Town meetings are a form of direct democracy. Local citizens come together to debate and decide on policy priorities for their area. For Meiklejohn, apparent limits on free speech in those meetings were in fact a means of enabling it. If a community is divided over whether to adopt some controversial proposal, for example, it seems fair to give those who propose it and those who oppose it an equal amount of time to make their case and to take questions from the audience. There is a sense in which the equality rule limits each side’s freedom of speech, as would curtailing the speech of a very long-winded audience member who wanted to take up all the time for himself; but in fact these rules are all in the service of the ideal of democratic free speech. ‘What is essential’, writes Meiklejohn, ‘is not that everyone shall speak, but that everything worth saying shall be said’ (p. 25). Free speech cannot be the right to say whatever one wants, to whomever one pleases on whatever occasion it pleases one to say it – a truth that the autonomy view may find a little harder to accommodate. By yoking free speech to democratic debate, Meiklejohn gives it a compelling defence and suggests a framework by which it may be regulated.

      At the same time though, as we know, democracies can limit free speech. Democracies have banned books, censored media and limited extremist – or, to put it less charitably, radical – political speech. How does this square with the democratic defence of free speech? Here it is important to emphasise the discursive component in Meiklejohn’s view. Democracy is not simply a process that takes citizens’ views in the form of their votes and converts the latter via the principle of majority rule into representative government, local or national. As in the town meeting, so in society at large, democracy involves widespread vigorous discussion. Deliberative democracy, to use the contemporary label, has been the object of sustained critical attention from democratic theorists in the last thirty years. It involves widespread rational, critical debate where citizens articulate the reasons behind their views, often emphasising how these reasons may be acceptable to others. Typically, the aim is to build consensus and reach agreement. The idea is that political decisions are more legitimate and morally defensible when they have been subject to vigorous challenge and counter-challenge. Deliberative theorists contrast their view with a simple voting procedure whereby, shielded by the secrecy of the ballot, citizens may vote on the basis of misguided, ill-informed, prejudiced, irrational or morally obnoxious reasons; yet these theorists do not deny that voting is usually necessary in decision-making in all but the smallest scale. Deliberative bodies are increasingly being used in many liberal democracies in order to involve citizens in processes of deliberation and consultation that will then affect the decisions of their representatives. They are often called ‘mini-publics’ (Setälä and Smith 2018) or ‘citizens’ assemblies’ (Warren and Pearse 2008). One worry about the deliberative democratic ideal is its relatively demanding nature; another one, not unrelated, is that in practice deliberation will privilege more advantaged citizens, who are often better able to articulate their views (for an overview of these debates see Bächtiger et al. 2018).

Although these two concerns are real, conceptualising democracy in deliberative terms goes a long way towards addressing the issues posed by representative democracies that limit free speech. On the deliberative view, free speech is the lifeblood of a democratic political culture; thus, in limiting it too severely, actual democracies would not properly respect their own normative ideal. Even if contemporary constitutional democracies in Europe, North America, Australasia and elsewhere fall some way short of the deliberative democratic ideal, the fact that they invariably give free speech constitutional protection bespeaks a degree of understanding of the notion that free speech is constitutive of a democratic political culture. At the same time, democratic free speech is compatible with, indeed may demand, some limits beyond the regulatory ones we have noted. For example, hate speech that claims that members of a minority ethnic or religious group are not genuinely members of the political community disrespects that group’s right to participate in the democratic process; for that reason hate speech might be regulated.

      Contemporary free speech theorists who have adopted the democratic view have defended a largely speaker-centric approach. For Robert Post, the value of democratic rule lies not so much in informed decision-making as in citizens’ ability reasonably to regard themselves as the ultimate authors of the law. This ‘requires that citizens have access to the public sphere so that they can participate in the formation of public opinion’ (Post 2011, p. 482) as well as hold their governments accountable to that opinion. This view sees free speech as the counterpart of formal voting, which (directly) puts in place a government and (indirectly) influences citizens’ attitudes in the public domain. Free speech seeks to shape citizens’ views, an important feature of democracy and something that elected governments always have an eye on.

A similar view is advanced by James Weinstein, who asserts ‘an uncontestable right of each individual to free and equal participation in the political process, including the public discussion by which our society’s laws, policies, and norms are evaluated’ (Weinstein 2011, p. 505). Weinstein connects the right to public speech with the value of political legitimacy. Just as it is illegitimate for unelected governments to make law and policy, so the decisions of fully elected governments are illegitimate, according to Weinstein, unless every citizen is free to speak out in favour of or against them (p. 498). It is this, according to Weinstein, which explains the cardinal US First Amendment principle of viewpoint neutrality: that it is always illegitimate for governments to limit the expression of any particular view or opinion, however controversial.