In this article I will be explaining Thomas Scanlon's theory of freedom of expression, identifying its foundations in the liberal theories of Locke and Mill in order to provide an introduction to what should be understood by the term 'freedom of expression' in a liberal society, and to offer an explanation as to why acts of expression are deemed to be acts protected from legal prosecution or censorship.
Scanlon refers to the term 'freedom of expression' as being commonly used to refer to 'a class of 'protected acts' [understood] to be immune from restrictions to which other acts are subject' (Scanlon, 1972, 204). What he means by this is that some acts of expression, such as ordering a squadron to massacre civilians could be punishable under the law, yet the use of speech to suggest a squadron should massacre civilians would be defended by some who argue that speech should always be free. Such distinctions are important when it comes to considering what kind of expression should be tolerated in a liberal society, and which, if any, should be punishable under the law. We will return to this example later, but first we will look at why exactly freedom of expression is so closely aligned to liberal theory.
The first liberal foundation for freedom of expression can be found in what contemporary philosopher Alan Ryan identifies as the minimal moral basis for all the different kinds of liberalism that have emerged over the centuries. While the nuances of these theories may vary they all share the same commitments at their core; these being moral equality, individual autonomy and a wariness of the extent of state intervention in the lives of citizens. Ryan argues that these commitments can be summarised by John Locke's claim that men are born 'in a state of perfect freedom to order their actions and dispose of their possessions, and persons, as they see fit...a state also of equality' (Locke, 1689 / 1967, 287). Aligning Locke with classical liberalism, Ryan defines this branch of political philosophy as arguing for a minimal government whose role is limited to the maintenance of the rule of law i.e. enforcing an individual's right to own and pursue property (material goods) through their free choice of occupation. While modern liberals are more likely to argue for a welfare state - this is when things such as healthcare or education are paid for through taxes and co-ordinated by the state, which necessarily means there is requirement for a larger and more bureaucratic government than classical liberals would desire - even proponents of this position, such as Rawls, recognise that 'personal property is a necessary element in individual self-expression, especially by means of freedom of choice in careers' (Ryan, 1993, 295).
Here, then, we see a commitment to the concept of 'freedom of expression' at the minimal moral basis of all the myriad forms of liberal theory; the right to choice of occupation and to the possession of property articulated as part of the wider right of an individual to self-expression. And a further liberal commitment to freedom of expression can be found in an examination of the tension between proponents of classical and modern liberalism built on the former's wariness of the welfare state.
While there is unease over an individual's property rights being violated by a welfare state (i.e. through higher taxes), most relevant to our topic is the concern that a larger, more bureaucratic, government 'threatens the gains that classical liberals achieved when they replaced the tyranny of kings and courtiers with constitutional regimes' (294). It is this anti-absolutist stance that finds a further liberal foundation for freedom of expression. Ryan notes that one common thread amongst the diverse strands of liberalism is that all are a 'perennial protest against all forms of absolute authority' - whether it is said to be conferred either by the voice of God as with the divine right of Kings, the dictates of history as in Marxism, or racial destiny as with the Nazis (297). Absolutist governments, like that of Nazi Germany or Stalin's Russia, not only confer arbitrary power to figures who are deemed infallible and above the law, but also restrict the power of the citizens to direct and improve their own society. The power of the citizens, and their restrictions, are found in their secondary allegiances - these are the freely formed associations in which various social, commercial and intellectual activities might be pursued. For example, recently the infamous Mosquito device was argued to have broken the European Convention of Human Rights as it stopped teenagers from their right to freely congregate, having been used in England by shop keepers to deter groups of teenagers from loitering with its emitting of an annoying high-pitched sound that only young people can hear, while Israel heavily censored Palestinian poetry during the early years of their occupation, eradicating any references to resistance (Hardy, 1982). Freedom of expression - here taken to be the ability to freely communicate with one another, and to communicate beliefs different to the governing body - is a threat to absolute authorities who do not wish to share their control over the lives of citizens with any other, no matter how minor, sources of authority.
So, with its minimal moral basis and anti-absolutist stance, we have seen two important reasons why freedom of expression is so closely aligned to liberalism. And we have also seen that the term 'freedom of expression' considers a broad range of acts of expression - whether it be written communication or an act of congregation. We shall now take a more detailed look at what exactly the term 'freedom of expression' means.
Scanlon points out that the term 'freedom of expression' should include:
any act that is intended by its agent to communicate to one or more persons some proposition or attitude. This is an extremely broad class. In addition to many acts of speech and publication it includes displays of symbols, failures to display them, demonstrations, many musical performances, and some bombings, assassinations, and self-immolations. In order for any act of expression it is sufficient that it be linked with some proposition or attitude which it is intended to convey. (Scanlon, 1972, 206)
Perhaps it is because, as Scanlon points out, communication, or expression, can take violent forms such as bombings and assassinations, we find people often only talking about 'freedom of speech' - for many would argue that such actions ought to be restricted by law. The intuitive difference being that 'speech' cannot be violent or injurious towards another person's physical well-being, unlike many forms of 'action'. But to give substance to the idea of freedom of expression we need to recognise that different liberties - such as freedom of speech, freedom of action, freedom from repression - come together. For example, the congregating of teenagers can be an act of expression in itself; specific examples being how the communality of early music festivals was seen as part of a political and social rebellion on the part of the young in the nineteen-sixties, or we could consider silent marches of protest in which not a single word need be said to make a point. Furthermore, another consideration is that the act of congregation is vitally important for many of the ideals of freedom of speech to occur. Scanlon recognises the importance of both speech and action, noting further that those who differentiate between the two 'have generally wanted to include within the class of protected acts some which are not speech in any normal sense of the word (for instance, mime and certain forms of printed communication)'. He also notes that those same proponents of free speech might also want to exclude from the subclass of 'speech', some forms 'which clearly are speech in the normal sense (talking in libraries, falsely shouting 'fire' in crowded theatres, etc.)' (207).
And it is with this latter point that Scanlon puts forward his own theory for freedom of expression. For he argues that it is not the distinction between speech and action that is important to the question of restriction, but rather the legitimacy of the justification for censorship, and whether an act of expression directly causes harm.
Scanlon, with reference to the modern liberal John Stuart Mill and his work On Liberty, refers to his theory of freedom of expression as his 'Millian Principle'. With this principle he aims to explain why freedom of expression consists of a class of protected acts, despite the potential for otherwise restricted harms to arise from them:
There are certain harms which, although they would not occur but for certain acts of expression, nonetheless cannot be taken as part of a justification for legal restrictions on these acts. These harms are: (a) harms to certain individuals which consist in their coming to have false beliefs as a result of those acts of expression; (b) harmful consequences of acts performed as a result of those acts of expression, where the connection between the acts of expression and the subsequent harmful act consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing. (213)
The (a) component of Scanlon's Millian Principle deals with acts of expression that differ from the authority of the state or common opinion; i.e. what would once have been termed 'heretical'. While his (b) component addresses the role of rational autonomy in the relationship between the speaker of the act and its listener. We will now focus on each component in turn, examining their foundations in Mill's liberal theory.
The (a) component of Scanlon's Millian Principle tackles the legitimacy of any justification to restrict expression. In particular, Scanlon believes that just because an act of expression may spread a false belief this is no reason to censor it. Rather than having any legitimate justification for the censorship, Scanlon instead considers such restrictions on expression to be 'violations' that are distinguished 'from innocent regulation of expression [as it] is not the character of the acts they interfere with but rather what they hope to achieve - for instance, the halting of the spread of heretical notions' (209). The censors are acting on their own self-interests rather than any inherently harmful aspect of the act of expression itself. What an illegitimate justification for censorship focuses on is the (undesirable) view communicated by an act of expression, in other words its content. While legitimate justifications for censorship consider the factors related to acts of expression, such as harmful consequences or outcomes (e.g. context; race discrimination laws are in place to avoid people being blocked from an equal opportunity to work, rather than because a racist view is bad in itself).
This component of Scanlon's principle relates directly to Chapter II of Mill's On Liberty, which is dedicated to the freedom of thought and discussion. Mill presents an argument against the censorship of 'false beliefs' which offers various lines of criticism, but we will focus here on his argument from infallibility. Here Mill argues that no person has the authority 'to decide the question for all mankind and exclude every other person from the means of judging' (Mill, 1859 / 1974, 77). What he means by this is that no one can be certain that their own belief is absolutely correct, yet the censor is conferring a judgement of absolute certainty on their own beliefs by refusing any challenges to them (i.e. the 'false beliefs' being censored). In the context of writing in an England that was still very much aligned with Christian belief, Mill directly tackles the obvious problem of religious belief requiring an acceptance of the absolute truth of divine revelation (the false beliefs censored here would be that of the heretics cited by Scanlon in his own principle). Mill cites the example of Jesus being persecuted for his own religious beliefs, notes that current believers despise their saviour's persecutors, and then points out that they are being hypocritical to persecute those who do not share the same religious beliefs as them in their own time. Mill concludes this demonstration by pointing out that 'Orthodox Christians who are tempted to think that those who stoned to death the first martyrs must have been worse men than they themselves are ought to remember that one of those persecutors was Saint Paul' (85-86). The reference to St. Paul is a powerful one since he was one of the most important writers of the New Testament and the person who properly established the Christian church in the first place. If St. Paul was fallible in his own beliefs, who are they to impose their beliefs on others? Tolerance concerning the freedom of expression of alternative religious beliefs is required on the censor's part.
We will now look at the (b) component of Scanlon's Millian Principle. This second component explains why even though an act of expression may lead to harmful consequences, it does not necessarily mean it should be banned. This relates to the first example given in this essay where:
The difference between these two acts is down to the autonomy of a citizen. Scanlon argues that mere persuasion to commit some harmful deed is not enough to censor the act of expression that convinces a person to do that deed. He puts it in this way: '[a] person who acts on reasons he has acquired from another's act of expression acts on what he has come to believe and has judged to be a sufficient basis for action' [emphasis in the original] (Scanlon, 1972, 212). With reference to the massacre example, take person X to be the one expressing the idea, and person Y to be the one who commits the act. As long as person Y is rational, meaning he is in full possession of his attributes, merely being given reasons to massacre a village (i.e. the suggestion to massacre a village) is not enough for the person X (making the suggestion) to be held accountable for Y's actions, should he commit the murderous act. Even if X pointed out various methods of attaining weaponry for Y to pull off the massacre, if Y committed the act X would only be providing the means for Y to do what Y wanted to do anyway. The point is that if a person can make an independent choice or decision to commit an act, then it is she that is accountable for that act, rather than the person that they got the idea from. Meaning freedom of expression here is not to be restricted by law, even if it does lead to some harm. It is Y's autonomy in his decision-making that makes him accountable for the massacre, rather than X's act of expression.
Person X could be held accountable for his act of expression under certain circumstances, though. Stressing the importance of autonomy in this theory, Scanlon notes that X (exchanging 'X' for 'I' in the following quote, and 'Y' for yourself) could be held accountable if: 'you were a child, or so weak-minded as to be legally incompetent, and I knew this or ought to have known it; or if you were my subordinate in some organization and what I said to you was not advice but an order, backed by the discipline of the group; or if I went on to make further contributions to your act, such as aiding you in preparations or providing you with tools or giving you crucial information' for the act (212).
This, again, relates to Mill who put forward his liberty, or harm, principle in which power can only be rightfully exercised over any member of a civilized community, against his or her will, if it is to prevent harm to others. Mill is arguing for a freedom based on individual autonomy, and so his principle includes the conditions that a person can only be free if she is free to make a choice (and has not been coerced), can make a choice voluntarily (is competent to choose) and is informed (has been given sufficient information concerning the decision). If a person does not meet these conditions, that person is not truly free. And so, as with Scanlon's theory, a person would not be accountable for their acts if she were coerced (forced in some way) to commit them, and/or was not competent to a level that meant she could make an informed, autonomous, decision. Instead the speaker of the expression that led to the act would be held responsible, and restrictions on her speech, or consequent punishment, would be justified.
An autonomous person, on the other hand, cannot accept without independent consideration the judgement of others as to what she should believe or what she should do. Hence mere persuasion is not enough to restrict an act of expression if the person who commits the harm has the ability to decide for his or herself whether to comply with that act of expression or not. In a slight departure from Mill who is concerned with the relations between humans, Scanlon presents his views in terms of a state-citizen relationship. And it is in this sense that his theory of freedom of expression relates to Locke's liberalism too. For with this second component of his principle, Scanlon is arguing that the state cannot restrict the advocacy of illegal conduct as this conflicts with an individual's autonomy; for giving the state the right to do this would be giving the state the right to deprive citizens of the grounds for arriving at an independent judgement as to whether the law should be obeyed (218). As Scanlon puts it, '[w]hat is essential to the person's remaining autonomous is that in any given case his mere recognition that a certain action is required by law does not settle the question of whether he will do it' (216). In this sense, Scanlon is supporting both the notion of minimal government intervention and the minimal moral basis of liberalism as provided by Locke - that citizens should be free and equal, 'in a state of perfect freedom to order their actions and dispose of their possessions, and persons, as they see fit', with the government merely maintaining the rule of law, not coercing individuals to follow it but rather seeking co-operation. Liberal states still have a coercive capacity, in the form of, for example, a police force and military, but they hold a distinctly liberal justification for a restriction on their use to intervene in the lives of citizens: that their co-operation should be favoured over their coercion. The difference between coercion and co-operation being that the latter will convince a person that the law is the right one to follow, but will still give the person the opportunity to deliberate and make such a decision, whereas the former tries to do away with that freedom.
In conclusion, freedom of expression protects a class of communicative acts, under Scanlon's theory, because they ensure our individual autonomy and independence of thought; and, further, this commitment of Scanlon's is that of the liberal project as expounded by both Locke and Mill.
These points on freedom of expression are interesting in our current political climate. If you think Scanlon is correct, does that mean the advocacy of illegal acts should not be restricted, and that our government is wrong to impose laws against the 'glorification of terrorism'? As the DirectGov website states, the Terrorism Acts 2000 and 2006 made it illegal to:
The above criteria includes '[a]ny information that is intended to be useful to terrorists [,] including: bomb-making instructions [,] guides to making poisons [,] instructions on how to make weapons [and] guides to targets'. Interestingly, these now illegal acts of speech echo the earlier example used in this essay concerning the suggestion to massacre a village, and the communicating of relevant methods for the massacre to interested persons; acts of speech that Ryan would argue should not be censored due to the volition of the audience of that speech to choose to act upon them or not. Yet despite this government run website claiming 'UK laws are written to make sure that people can speak, and write, freely without being sent to prison for their views. To be illegal, the content must match the descriptions at the top of this page' (i.e. those specified here), which is something Ryan would perhaps argue is a contradiction.
Furthermore, what does it mean to 'glorify' or 'praise' terrorism? The artist Damien Hirst claimed in 2002 that 'The thing about 9/11 is that it's kind of an artwork in its own right. It was wicked, but it was devised in this way for this kind of impact.' (Guardian, 19/07/2002). Hirst's sentiment appears to be showing a level of admiration or appreciation of the act; the 'wicked' nature of the act seemingly neutralised by its purpose. The purpose here is specified as art, and with Hirst as an actively working artist, could this claim then fall under 'the glorification of terrorism, where this may be understood as encouraging the emulation of terrorism' as cited by the Terrorism Act (2006)?
The ambiguity of such laws may also be of concern to those who agree with Ryan. Do the terms 'praise' or 'glorification' fall under Ryan's distinction of 'ordering' and 'suggesting', or are they new terms that need to be incorporated into any theory of freedom of speech relevant to today's political climate? Raising the further question as to whether any such theory should only be considered adequately formulated if it copes with any given situation at any given time, or whether political philosophy necessarily needs to adapt with the new issues and challenges that arise as the decades pass.
Richmond upon Thames College
DirectGov, downloaded on 1st March 2010, Reporting hate, extremism and terrorism online:
Guardian.co.uk, Thursday 19th September 2002, Hirst apologises for calling 9/11 'a work of art':
Hardy, Roger, 1982, Palestinian Writers in Israel in Boston Review:
HomeOffice.Gov, downloaded on 1st March 2010, Legislation: Terrorism Act 2006:
Locke, John, 1689 / 1967, Two Treatises on Civil Government. Cambridge: Cambridge University Press
Mill, John Stuart, 1859 / 1974. On Liberty, Penguin Books Ltd.
Ryan, Alan, 1993. Liberalism in A Companion to Contemporary Political Philosophy, ed. Robert E. Goodin & Philp Pettit; Blackwell Publishers Ltd.
Scanlon, Thomas, 1972, 'A Theory of Freedom of Expression.' Philosophy and Public Affairs, Vol. 1, No. 2.