BLAW10002 Lecture Notes - Lecture 3: John Stuart Mill, Lie, Tobacco Advertising
14 May 2018
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Rationales of freedom of speech
General Concepts (p.28-31)
•Freedom is an important right, entitled to a greater degree of immunity from regulation
•Rights to privacy and protection from offensive speech are importnat balancing considerations
•Impossible to draw a definitive line between legal and philosophical arguments of free speech
•Although many detailed statues exist, the meaning of freedom of speech is hard to elucidate
-They are open-ended and morally loaded
•Evolution of concepts and political and social circumstances have changed the way legal and
constitutions are applied and interpreted
•Even with a concrete constitution, moral and political reasons justifying the protection of free
speech must be considered
•Free speech and its associated rights are unique to every situation
•Scope of “speech” must be considered, e.g:
-Actions such as protests
-Commercial advertising
-Sexually explicit material
-Desecration of a flag
•Negative liberty (freedom from interference) vs Positive liberty (freedom of information)
•There is often a trade-off of rights between the speaker vs recipient of free speech
•A free speech principle means that expression should be tolerated even when conduct
produces offence or harmful effects
1. Truth and reason - John Stuart Mill (1859) and other classical liberal theorists (p.31-34)
•Open discussion and the discovery of truth
•Two versions of this argument:
(a) the discovery of truth has an inherent truth
-autonomous and fundamental good
(b) truth ensures people can participate in society and conduct affairs in an optimal way
-utilitarian as it progresses/develops society
•Mill also stated false truth should also be free
-Ensures marketplace of ideas
-Allows truth to emerge as falsehoods are challenged
•Alternatively, being lenient with free speech may spread false information
-Views may be subjectively true or false
-Therefore, if you restrict people’s true beliefs as they will no longer be challenged to
defend their views
•Uninhibited discussion rather than a process regulated by the state
-A government does not have the same commitment to the truth as a university or alike
-Therefore they cannot be relied on for appropriate procedures for the discovery of truth
Criticisms/Counterarguments of Mill:
•Assumes the publication of a true statement is of the highest public good
-Legal system often chooses to protect other values
-E.g. racial hate speech because racial harmony is considered more important than
people’s views of race
-E.g. restriction on tobacco advertising, even though some claim it is healthy to them
-However, to some extent the truth can be protected if the wisdom of bans can be debated
-Also, it may be dangerous to suppress unpleasant truths as they may surface later in a
more dangerous form
•Implicitly assumes that free speech necessarily leads to truth and thus better individual or
social decisions
-Not always a shared commitment to the discovery of truth
-E.g. Rise of the Nazis - plenty of free political debate, but still came to power!
•Mill makes no distinction in his argument for truth:
-More relevant only to political, moral and social affairs than to mathematical and scientific
propositions?
-Distinction between fact and opinion?
-Other modes of expression such as commercial advertising or sexually explicit material?
•Paradoxical nature of Mill’s argument
-The argument for truth is seen to be particularly applicable to areas where it is particularly
difficult to establish an assuring truth
-i.e. political, moral and social affairs have uncertain/subjective truths whereas
mathematics and science have more concrete answers
-However, Mill’s argument applies most clearly to political, moral and social affairs
•There are types of expression where it seems absurd to look for an element of truth
-Things are not always a matter of true or false, particularly opinions
•Acting in the interest of truth is not always the best option
-Free speech does not cater for the possible harms that may occur through the pursuit of
truth
-Invasion of privacy
-Publication of government secrets
-Inciting violence
-Discrimination
•Democracy exists to ensure free speech
•Government may not necessarily be committed to truth
•However elected representatives, holding the majority view of the public, are entitled to
regulate the truth
•Democracy ensures overall good and welfare of the community
•Unequal ability to participate and access platforms that enable speech to be heard
-Not all views equally received
-Now with the internet - greater ability to participate
-Ability for each person to speak individually on the internet, not really a solid platform for
one’s view, but allows networking - collective participation
•“Marketplace of ideas” is inherently unfair
-Competition exists just like economic markets
-People also exist who want to express falsehoods
-A variety of views need to be heard
-Access laws: proprietors can only reach 75% of population, and can only own two of
newspaper, television and radio companies.
- Local content quotas for commercial television stations
-Subsidies and taxes.
2. Self-realisation and individual autonomy (p.34-36)
•Free speech is an integral value to self-development and fulfilment
•Freedom speech essential for human development and any restrictions on human speech
restrict development, autonomy and dignity
-More reflective and mature individuals can benefit society as a whole
•Freedom of speech is closely linked to other fundamental freedoms
-Freedom of religion
-Freedom of thought
-Freedom of conscience
•“The powers of a state are limited to those that citizens recognise while still regarding
themselves as equal, autonomous and rational agents” - Thomas Scanlon
-Government is not entitled to suppress speech on the grounds that its audience will then
form harmful beliefs or partake in harmful actions
-Similar to Mill’s theory, without the assumption of truth arising from free speech
-The individual has the right to hear all views and consider acting upon them, even
though this will cause damage to society
Document Summary
Autonomous and fundamental good (b) truth ensures people can participate in society and conduct affairs in an optimal way. Utilitarian as it progresses/develops society: mill also stated false truth should also be free. Allows truth to emerge as falsehoods are challenged: alternatively, being lenient with free speech may spread false information. Views may be subjectively true or false. Therefore, if you restrict people"s true beliefs as they will no longer be challenged to defend their views: uninhibited discussion rather than a process regulated by the state. A government does not have the same commitment to the truth as a university or alike. Therefore they cannot be relied on for appropriate procedures for the discovery of truth. Criticisms/counterarguments of mill: assumes the publication of a true statement is of the highest public good. Legal system often chooses to protect other values. E. g. racial hate speech because racial harmony is considered more important than people"s views of race.
