The Future of Free Speech 3031413555, 9783031413551

Table of contents :
Acknowledgements
Contents
About the Author
Chapter 1: Introduction
References
Chapter 2: What Is Freedom of Speech?
Free Speech Fundamentals
A Brief History of Freedom of Speech
The Origins of Freedom of Speech
John Milton: The Beginnings of the Classic Defence
Milton’s Argument
John Stuart Mill: The Fruition of the Classic Defence
Mill’s Argument
References
Chapter 3: Epistemic Freedom of Speech in Practice
The Liberty of the Seminar Room
Climate Crisis and the Marketplace of Ideas
Two Media Strategies for Effective Science Denial
Civil Discourse and Censorship
IDW Censorship: Ideological and Financial
References
Chapter 4: Free Speech and the Redefinition of Harm
Mill and the Harm Principle
Feinberg and the Offense Principle
Criticisms of Mill’s Harm Principle
Modern Censorship and Call-Out Culture
Harm and the Internet
References
Chapter 5: Free Speech Goes Online
Social Media, Surveillance and Behaviour Modification
Privacy and Defamation
References
Chapter 6: A Turn Towards Toleration
The Six Elements of the Concept of Toleration
The Four Conceptions of Toleration
Reflexive Toleration
Reflexive Freedom of Speech
Criticism of Forst’s Theory of Toleration
References
Chapter 7: Reflexive Freedom of Speech in Practice
Internet and Privacy
Protest
Art
The Scope of Ideas
The Consequences of Speech
References
Chapter 8: Conclusion
Index

Citation preview

The Future of Free Speech

Benjamin Walters

The Future of Free Speech

Benjamin Walters

The Future of Free Speech

Benjamin Walters The Australia Institute Canberra, ACT, Australia

ISBN 978-3-031-41355-1    ISBN 978-3-031-41356-8 (eBook) https://doi.org/10.1007/978-3-031-41356-8 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland Paper in this product is recyclable.

For Lauren and Tobias

Acknowledgements

Thanks to Palgrave Macmillan for all their help getting this book out into the world, especially to Robin James and Arunaa Devi for their patience and guidance across the journey. Thanks to Matthew Sharpe and Maria Rae for providing me with all the wisdom and advice that a young scholar could ever hope for. Special thanks to all the family and friends that gave me the care and support I needed to get this book completed. And a very special thanks to my amazing wife and son—Lauren and Tobias, you never need to doubt it.

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Contents

1 Introduction  1 References   5 2 What  Is Freedom of Speech?  7 Free Speech Fundamentals   8 A Brief History of Freedom of Speech  12 The Origins of Freedom of Speech  15 John Milton: The Beginnings of the Classic Defence  17 Milton’s Argument  19 John Stuart Mill: The Fruition of the Classic Defence  23 Mill’s Argument  26 References  29 3 Epistemic  Freedom of Speech in Practice 31 The Liberty of the Seminar Room  32 Climate Crisis and the Marketplace of Ideas  36 Two Media Strategies for Effective Science Denial  37 Civil Discourse and Censorship  41 IDW Censorship: Ideological and Financial  43 References  45

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Contents

4 Free  Speech and the Redefinition of Harm 47 Mill and the Harm Principle  48 Feinberg and the Offense Principle  52 Criticisms of Mill’s Harm Principle  54 Modern Censorship and Call-Out Culture  59 Harm and the Internet  64 References  69 5 Free  Speech Goes Online 71 Social Media, Surveillance and Behaviour Modification  74 Privacy and Defamation  82 References  87 6 A  Turn Towards Toleration 89 The Six Elements of the Concept of Toleration  91 The Four Conceptions of Toleration  94 Reflexive Toleration  96 Reflexive Freedom of Speech 100 Criticism of Forst’s Theory of Toleration 103 References 107 7 Reflexive  Freedom of Speech in Practice109 Internet and Privacy 112 Protest 115 Art 119 The Scope of Ideas 122 The Consequences of Speech 127 References 129 8 Conclusion131 Index133

About the Author

Benjamin  Walters is a research fellow at the Australia Institute in Canberra, Australia. His research interests include theories of free speech, culture war, toleration and justice. He holds a PhD in Philosophy from Deakin University.

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CHAPTER 1

Introduction

How do we decide as a society what should and should not be acceptable to say to another person? This is not a new question by any measure, and it has been answered in many ways across history. However, it remains forever unsettled, as it is a question whose answer requires constant justification. In our contemporary context, we may be content to say that we live in a free society or a democracy and that therefore our ability to express ourselves—our thoughts and opinions—should remain without limit, unless, of course, it causes harm. However, this only brings up further questions, questions that have become more and more amplified as each of us continues to view and interact with each other in increasingly more integrated spaces, such as the internet. What we are discovering is that solving the free speech dilemma in a way that is morally consistent across platforms, cultures and time is more difficult than we could have imagined. We are often faced with examples of censorship that we want to affirm as just or disparage as unjust, citing our understanding of free speech principles, our dedication to freedom and to democracy. However, our position on those same examples is often opposed by others, citing those very same commitments. In many cases, the matter falls into a distinct grey zone where it appears you would require a PhD in philosophy just to unpack what is going on, let alone come to a solid conclusion you would feel comfortable standing behind in all circumstances.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Walters, The Future of Free Speech, https://doi.org/10.1007/978-3-031-41356-8_1

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For example, voices on the political left strongly criticise the firing of Australian public servant Michaela Banerji for critical tweets she made regarding her employer, but also celebrate the firing of rugby superstar Israel Folau for a homophobic tweet he posted online. Similarly, the political right revels in any decision that allows for un-‘PC’, anti-‘woke’ entertainment to remain ‘uncancelled’ and available for consumption, yet are up-in-arms over Black Lives Matter protests interrupting their sporting matches. Navigating these types of contradictions is critical for a justified freedom of speech operating in our contemporary society. What is needed, therefore, is a justification for freedom of speech that we all can feel comfortable standing behind across all circumstances. The aim of this book is to achieve just that—it is an attempt to solve a problem that I believe currently pervades our entire social context. It is my assessment that the way we justify freedom of speech in our contemporary society is flawed, leading to outcomes ranging from comical to disturbing. I do not take on this task lightly, for as Kent Greenawalt remarks, “[s]aying just when words and phrases pass beyond the bounds of civil discourse at any moment in history is daunting” (Greenawalt, 1996, p.  48). The advent of the internet, which has brought both unprecedented mass communication and data storage potential, coupled with changing conceptions of identity, has brought about a shift in the concept of harm—what can be considered harmful and what actions are then allowable to prevent it. This change in standards has brought into question the nature of free speech. Is it still morally sound to allow expressions that are considered harmful under newer (but also not excluding older) conceptions of harm? What restrictions are morally available to prevent or punish such actions? How do these changes affect the wider society and the lives of those who participate in it? These are just some of the questions this book will endeavour to answer. The current literature on freedom of speech places a large emphasis on the work of John Stuart Mill and the argument for freedom of thought and discussion drawn from his 1859 text On Liberty. This observation is in keeping with Alan Haworth’s assessment that we, as a society supportive of free speech, are still very much beholden to Mill’s work, despite the huge societal paradigm shifts that have occurred over the last 150 years. Indeed, there are many recent texts focussed on freedom of speech that still emphasise Mill’s argument for the liberty of thought and discussion as being a viable justification for freedom of speech. Issues are arising, however, as society enters what we might call a ‘post-truth’ era, wherein Mill’s

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free speech model and its assumptions surrounding public debate and the good-faith search of all parties for the best or most truthful discourse have become deficient or idealistic. This, now, has become exacerbated by the relationship between the internet, extreme political polarisation, and a corporate culture that is obsessed with both meticulous brand management and perpetual customer engagement. What I offer instead is to explore an alternative to Mill’s liberty of thought and discussion by grounding freedom of speech not in the pursuit of truth but in recent work on toleration. More specifically, I intend to ground freedom of speech within a framework of reflexive toleration based on the principle of justification, as laid out in the pivotal work of Rainer Forst in Toleration in Conflict: Past and Present and The Right to Justification. I hope to exploit the strengths of Forst’s position to provide a theory of freedom of speech that is just, universal, and consistently able to meet the challenges presented by our contemporary society. The demand for a framework of freedom of speech that is both universally just and inclusive of all people is gaining momentum as we move further into this new century. The value of free speech is constantly called into question in a world where more often, we are finding that conceptions of harm have morphed to include subjectively perceived acts of offensiveness. There are many critics who argue for restricting speech in response to these instances. This type of thinking has led to the adoption of new codes around what should and should not be understood as free speech, bringing about the introduction of new ways to police ‘acceptable speech’. As critics charge, these phenomena are especially prevalent on university campuses, sometimes resulting in the disruptive protest or disinviting of invited speakers from campuses through a process of what is often called de-platforming or no-platforming. This type of thinking is not limited to universities, with the corporate world also noticing the impact of rising activism on its brand management. The shift from brands being humble mascots for corporations to their personification as brand identities with ‘corporate consciousness’ has exacerbated this scenario, especially when coupled with the ever-growing pervasiveness of social media. This has led to situations where people have now lost their livelihoods due to corporations looking to avoid the scrutiny of a scandal or because of perceived damage to brand identity. While it may seem beneficial to dismiss the concerns of the offended to preserve free speech as a necessity for a functional free society, the shifting

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bounds of acceptability in standards of expression are not created in a vacuum. The extremes of unlimited expression have appeared to truly reach new limits on the internet. The ability to say anything to a potentially limitless number of listeners is unlike anything preceding in human history. There are a myriad of things to consider if free speech were to be limited to a greater extent than presently, or even potentially abolished in its current form, to prevent the discussion or promotion of what some, indeed many, might consider harmful or offensive ideas. One of the primary concerns is whether it is the intention or impact of speech that should determine which speech is limited and in what contexts. What is of concern here is that any restriction of speech based solely on its impact would arguably violate the bounds of acceptable accountability. This means that the burden of proof in this situation is shifted from the accuser to the accused, resulting in the accused needing to prove the intentions behind their speech to demonstrate their innocence, which can be a complicated affair. Limiting speech in these capacities can also open up the possibility of a reversal in what is considered acceptable discourse, as power is gained and lost by successive governments/leaders. What is considered legitimate one day may become outlawed the next, and vice versa. The precedent set in how speech is proscribed is one that carries through to any who gains power. Combatting this problem thus requires a framework for free speech that cannot be subject to such reversals. I argue that by basing the foundations of free speech on reflexive toleration, we create a condition wherein all parties are ensured a reciprocally justifiable right to freedom of speech, one that cannot be removed or abused by any ideological group over another—thereby achieving maximum inclusiveness and consistency. Forst’s theory is optimal for application to freedom of speech in this modern context due to its internal understanding that “toleration is not always the correct recipe for intolerance” (Forst, 2020, p.  6). Forst understands that first, conflicts cannot always be resolved (hence the need for toleration), and second, toleration (reflexive toleration) does not require that all things are entitled to toleration. I therefore believe that the success of Forst’s reflexive toleration conception is how it ‘draws the limits’ in deciding what should be tolerated. Forst bases his framework for toleration on his understanding of the principle of justification, by which those who seek to coerce or otherwise exert power over another must be able to justify the use of such force in a way that is agreed to as being reciprocally justifiable to all parties involved.

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This reciprocity requires that these justifications do “not employ any controversial comprehensive doctrines or ethical values, but only the rational principle of mutual, critical justification, in which each person affected always has a veto regarding the reciprocal and general character of the justification used” (Forst, 2020, p. 15). This means that no epistemic or religious claim can be utilised to justify the use of force, as such “beliefs are neither verifiable nor falsifiable by rational means alone” (Forst, 2020, p. 14). No party can therefore claim access to absolute truth without it being claimed equally by another. Ultimately, in regard to freedom of speech, the framework of reflexive toleration should provide us with the necessary tools for a theory of freedom of speech that allows us to similarly draw the limits of what should and should not be considered acceptable speech. Those in conflict over certain types or instances of speech should be required to seek out where the limits of speech should be drawn based on a principle of reciprocal justification, without the ability to claim the ‘moral high ground’ by relating their justification back to their own personal beliefs and ideologies. I will therefore look to explore the history, details, interactions and applications of freedom of speech to demonstrate how a reflexive freedom of speech would be best suited to deal with the speech-based predicaments of contemporary society.

References Forst, R. (2020). Toleration, progress and power. In R. Forst (Ed.), Toleration, power and the right to justification. Manchester University Press. Greenawalt, K. (1996). Fighting words. Princeton University Press.

CHAPTER 2

What Is Freedom of Speech?

There has recently been much mainstream discussion about freedom of speech. It would not be uncommon for you to have, over the last decade, encountered statements referencing freedom of speech in the media, on campus or even at the family dinner table. Freedom of speech is something that everyone currently seems to have an opinion on. The most immediate reason for this is aptly summed up in the following quotation from the historian Timothy Garton Ash: “Never in human history was there such a chance for freedom of expression as this. And never have the evils of unlimited free expression – death threats, paedophile images, sewage-tides of abuse – flowed so easily across frontiers” (Garton Ash, 2016, p. 1). The question as to whether something you or I say, write or otherwise express can cause real harm to another (or many others) is a debate that has been going on for centuries. However, with the advent of the internet and, subsequently, social media, coupled with the ubiquity of widely accessible personal communications technology, the game has changed in a way that historical free speech heavyweights such as John Milton and John Stuart Mill could never have anticipated—and this is only the tip of the iceberg. Two other prominent contemporary issues for freedom of speech theory to adjudicate include privacy, which can arguably be simplified as the right to not express oneself, and the deliberate dissemination of misinformation, the issue of whether we should police free expression that

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deliberately misleads people from the truth. However, before we get to any of that, it is important to go back and ask ourselves the question posed at the outset of this chapter: what is freedom of speech? This question is a very important one—one that is not necessarily able to be adequately answered by all those who espouse it as a fundamental or guiding virtue. Is it solely the right to express your opinions? Or can it encompass other types of utterances, such as reciting a poem or cheering for a sports team? Is it synonymous with having the right to simply speak? Whatever the answers to these questions may be, it is clear that there is some work to do even before we get to look at whether comedians should be able to tell controversial jokes or whether people should get fired for something they post online. This work is important for us to do because without a strong, philosophical foundation, we may find the justification for freedom of speech on which we are operating is inadequate. It could have blind spots, leading to negative consequences for specific individuals or groups, or it could even become wholly inverted as legitimating grounds for censorship.

Free Speech Fundamentals The first question that any philosophical argument is required to answer is a definition of terms. Following this prerequisite, the term ‘freedom of speech’ must be suitably interrogated. Consider, does this argument for freedom count exclusively for speech, or does it also refer to symbolic action or people’s dress? Is it the same as John Stuart Mill’s ‘thought and discussion’? If one was supremely specific, there could even be a question as to whether there is a difference between ‘freedom of speech’ and ‘free speech’. One definition that could prove fruitful in answering these questions is provided by the philosopher Alan Haworth in his book Free Speech: [F]ree speech is best construed as a generic or ‘umbrella’ short-hand term for a number of distinct freedoms. Freedom of thought and discussion is only one. Examples of other freedoms covered by ‘free speech’, the way the expression normally tends to be understood – or else closely related to freedoms covered by the term – are the freedom of the press, the freedom to participate in political demonstrations such as protest marches, the freedom to participate openly in political meetings, and (possibly) ‘artistic’ freedom from censorship to display and publish work which others may find offensive. (Haworth, 1998, p. 8)

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Freedom of speech understood in this way includes a vast variety of categories to consider. This is not unexpected considering the range of topics usually associated with free speech considerations. What is interesting, however, is that many of the preceding examples extend beyond what we would commonly consider ‘speech’, while others do not include anything recognisable as ‘speech’ at all. What we have here then is a definition of freedom of speech that encompasses the entire range of what might be better referred to as expression. Perhaps then, a more suitable term for what we are considering would be freedom of expression? Thomas Scanlon makes this case in his article ‘A Theory of Freedom of Expression’, defining what we would commonly refer to as acts of free speech as follows: “[A]cts of expression,” which I mean to 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 to be classified as an act of expression it is sufficient that it be linked with some proposition or attitude which it is intended to convey. (Scanlon, 1972, p. 206)

While using terminology such as ‘freedom of expression’ or ‘free expression’ may make more literal sense in terms of defining what I am going to be talking about in this book, changing the terminology in this way, I believe, will only serve to muddy the discussion unnecessarily. Therefore, I am inclined to agree with Haworth’s take on this matter when he writes, “I have kept ‘free speech’, if only because it is colloquial and familiar” (Haworth, 1998, p. 8). In keeping with this, I tend to use the terms ‘freedom of speech’, ‘free speech’, ‘freedom of expression’, and ‘free expression’ interchangeably in reference to the broad categories of expression discussed in the definitions above. One important thing to note when considering these broad categories of expression is the lack of one specific category that you may initially find strange: neither Haworth nor Scanlon has included the freedom to speak as a part of free expression. Haworth provides a simple explanation for this, arguing that even under the most oppressive regimes, the policing of literal speaking (using your voice) would be too difficult. This brings the question: what needs to occur in order for someone to cross the threshold from simply speaking to exercising freedom of speech?

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Haworth (1998, p.  10) provides the following criteria for what he argues must take place for “a genuine defence of free speech, as opposed to the simple freedom to speak”: (i) It must identify a class (or some classes) of acts and argue for their protection by embodiment in law and/ or political practice. (ii) Those acts must be speech acts in the sense that their main function is to communicate a proposition, or set of propositions to others. (iii) It must treat the right to free speech as a public right – ‘public’ in the sense that it can be exercised by any non-assignable member of the community – and not as exclusive to a subgroup or élite. (iv) It must ground the right to free speech in the context of a wider, liberal, value system;  – ‘liberal’ in the sense that it (a) attaches enormous, if not supreme, importance to individual liberty; (b) treats a specific set of freedoms (from the interference of authority) as constitutive of the good society; and (c) grounds the former view in a more general conception of the nature of human freedom. (Haworth, 1998, p. 10) For Haworth, these criteria are the minimum standard of what is required for a free speech defence. Let us have a look at some further explanation of each of these four clauses. Clause (i) reflects the basic premise that “[n]o one could plausibly argue that free speech is genuinely respected under a regime where speaking is something you have to get away with” (Haworth, 1998, p.  11). Therefore, to satisfy clause (i), a state or society needs only to enshrine acts of speech into law. However, this is not the end of the story, as there is a key difference between an institutionalised ‘right to free speaking’ and what we will come to understand as true freedom of speech. Haworth provides a clever analogy to illustrate this point: Imagine, then, that the ruling junta of some monolithic, one-party, totalitarian state decides to erect ‘free speech booths’ at accessible points throughout the land; at street corners in cities and towns and elsewhere. Suppose that they resemble telephone booths but that, unlike telephone booths, they have no windows. Suppose that they are sound-proof too. The point is that once inside the booth you have complete privacy. Under the system you are

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at liberty to enter an unoccupied booth whenever you like and express any opinion you want in any tone of voice. You can mutter imprecations or you can scream out loud ‘Down with the dictators!’ Let us suppose that there is even a graffiti wall with pens provided gratis and that – as you leave – this is automatically wiped clean, ready for the next occupant. (Haworth, 1998, p. 11)

While those who enter the ‘free speech booths’ have an institutionalised ‘right to free speaking’—once within the booth they can express themselves as they please—they certainly do not have the right to free speech. This informs the necessity of clause (ii): the provision under which speech acts cannot be committed in isolation. The most important thing to take away from clause (ii) is the importance of context. For you to be exercising free speech you cannot simply be ‘speaking out’ in isolation—on a desert island or in a ‘free speech booth’. Any act of free speech requires not just a ‘speaker’ but also a ‘hearer’ (or multiple ‘hearers’). Furthermore, to count, any ‘hearing’ must appear in a public context—two people entering a ‘free speech booth’ together for a discussion (no matter how radical) does not amount to free speech if totalitarian conditions remain outside of the booth. Clause (iii) is relatively straightforward: freedom of speech should be an indivisible universal right. Certain groups or individuals should not have ‘more’ free speech compared to other groups or individuals. Any breach of this clause could result in a serious deterioration (or even abolition) of free speech within a society. If one specific group of people are able to speak freely about another specific group—criticise them, mock them, etc.—yet the opposite occurrence is forbidden, how can that society claim to truly possess freedom of speech? If speech is not free for all, then it is not truly free. Last, we have clause (iv): that free speech should be grounded within a wider, liberal value system. Haworth gives a definition of what he has in mind for this: [A] value system – or, if you like, an ethical political world view – is ‘liberal’ in the sense of the term I am employing here if it (a) attaches enormous, if not supreme, importance to individual liberty; (b) treats a specific set of freedoms (from the interference of authority) as constitutive of a good society; and (c) grounds the former view in a more general conception of the nature of human freedom. (Haworth, 1998, p. 15)

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While this definition is broad, I can see it remaining open to criticism from those to the political left of Haworth—those who would arguably view his constraining of freedom of speech within a prism of ‘liberal’ principles as an issue. Without having the space to adequately explore these issues here, perhaps it is fairer to simply take Haworth’s point that—despite his personal adherence to liberalism—what he ultimately wants to do here is to ground freedom of speech “within a broader ethical and political view” (Haworth, 1998, p. 15). I think most people who support societal freedoms in general would agree with this sentiment. For what value is freedom of speech if it does not exist alongside a right to not be enslaved, for example? That being said, it is the fourth clause that remains the most controversial. The choice of what broader ethical system to place freedom of speech within (and subsequently justify its operation) is that which forms the key argument of this book. However, before we address those particular concerns, let us take a brief look at how we have got to where we currently stand with freedom of speech in contemporary society.

A Brief History of Freedom of Speech If what this book ultimately aims to achieve is to present a theory of freedom of speech best suited to the conditions of our contemporary society, then this requires a moral framework of justification that not only ensures freedom of speech for all people but is also able to handle the unique challenges offered by contemporary society. Answering these challenges will be difficult, for as we shall discover, the social and technological advancements of the twenty-first century create many new problems, many of which thinkers of previous eras could not have even dreamed. Nevertheless, gaining an understanding of how an idea has developed over time can be invaluable in gaining a thorough understanding of how the idea now operates in the present. Thus, a brief historical analysis of freedom of speech becomes necessary if we are to achieve our stated goal. The importance of a historical analysis can be explained using three distinct reasons. The first is that historical ideas do not necessarily stay in the past and often have a continuing influence on the philosophical arguments of the modern day. For example, take these three quotations: The nineteenth-century case for freedom of speech took another leap forward with the publication of John Stuart Mill’s On Liberty in 1859. Mill made an uncompromising case for individual freedom of speech as a social

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good, and the importance of allowing the heretical voice to test the accepted truths and values of society. (Hume, 2015, p. 93) To proscribe an opinion is to stifle not only the right of a person to express that opinion, but also everyone’s right to hear it – a recipe for intellectual laziness, since it is only by engaging with other points of view that we call our own positions into question, refining them when they need refining, and discarding them when they are shown to be flawed. (King, 2016, p. 15) Mill’s reasoning is bracingly simple: the ‘truth’ is often not the truth, and those who presume to impose it upon everyone serve only to prevent the real truth from emerging. (Lukianoff & Haidt, 2018, p. 206)

Each of these quotations argues for a version of free speech based on the work of arguably the most famous free speech theorist in history, John Stuart Mill. Despite each of these works being a product of the 2010s, they are all still advocating for a version of freedom of speech from the late 1850s. Now this may not initially seem like an issue—for example, Pythagoras’ theorem still holds up and that precedes Mill’s work by millennia. However, we must remember clause (iv) of Haworth’s framework: freedom of speech must be grounded in a wider ethical and political context. Freedom of speech is not a mathematical constant or logical proof; it is a normative (i.e. moral) problem that can be justified in a myriad of ways (to varying degrees of success). Thus, the issue with using an older free speech justification for our current society is the question of how the older justification deals with the changing contexts brought about by social and technological advancement. Haworth makes this case himself, arguing that we have become far too reliant on the work of Mill in a world that no longer resembles the world Mill was writing for. He explains this using the analogy of a map: No one of sound mind would willingly embark on a journey into dangerous territory equipped only with a map which had last been redrawn almost one hundred and fifty years prior to the time of their departure. And yet, when it comes to free speech, most of us are content to do just that. I mean that the best arguments we have to go on  – the best-articulated and worked out – were developed in an earlier world; a world from which our own has grown but which is no longer exactly ours. (Haworth, 1998, p. 1)

While we can concede that people still want to live freely and without unjust coercion, it is important to acknowledge the complexity of what we

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are facing in current society in regard to freedom of speech. For example, societal shifts have seen the world progress from slavery to critical race theory. Critical race theorist Charles R. Lawrence III criticises the ‘marketplace of ideas’ conception of freedom of speech—a version of which is advocated for by Mill—on the basis that it fails to give proper consideration to a more modern understanding of equality and the continuing impacts of structural oppression present in society. He contends that the current conditions of our society result in a distortion of the market value of certain ideas over others, creating and maintaining an unequal system in which freedom of speech means different things to different social groups or individuals. Because of these sorts of contemporary criticisms, it becomes very important to understand exactly what figures such as Mill were arguing for, how such arguments may have been more appropriate during earlier periods of history and whether they still hold up under such scrutiny today. The second reason for a historical review of the arguments surrounding freedom of speech is that it provides a foundation of understanding in terms of what has already been achieved and to what extent such achievements succeeded or failed in producing the conditions that we would be looking to produce in our contemporary society. Due to its nature as a normative problem, the conditions of free speech can shift greatly across time. The question of who is allowed to speak and the limits of what they can say varies both geographically and chronologically. What this results in is a situation where different philosophical conceptions of the argument can arise, with some being more popular than others. Because of this, it becomes critical that we understand how different versions of the argument have functioned and the goals they aimed to reach to provide an adequate philosophical analysis as to whether they could further succeed or fail in a contemporary context. The third and final reason for a historical analysis is much more basic; it is simply to inform the reader that contemporary discussions about freedom of speech are not a new phenomenon. While it has drawn a much larger spotlight in recent decades, the tradition of arguing for freedom of speech is one that expands, albeit in different forms, throughout the length of philosophy. This is critical in grounding the importance of the topic for humanity as a whole. Freedom of speech has deserved and continues to deserve our attention. With these reasons in mind, let us now take a brief look at the origins of free speech before taking a closer look at what is arguably the most

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commonly cited defence of freedom of speech in our contemporary world, John Stuart Mill’s classic defence of ‘The Liberty of Thought and Discussion’.

The Origins of Freedom of Speech Finding a succinct starting point in history for arguments directly supporting what we would commonly understand as freedom of speech is not necessarily as straightforward as you would imagine. For a long time, many of the philosophical arguments that could be used to support freedom of speech were often actually being made in support of different (yet arguably related) concepts, such as religious toleration. For some scholars, this ‘repurposing’ can be a concern. Just as issues can arise when arguments are utilised anachronistically, Haworth argues that issues can arise when you import arguments from one context to another. We will address this concern more thoroughly in Chap. 6, but it will suffice to say for now that in this particular context, I disagree. While Haworth believes this connection between freedom of speech and toleration to be problematic due to tensions between the religious and secular interpretations of the arguments, it appears to me undeniable that they hold an affinity with one another. For after all, is freedom of speech not just the toleration of the speech of others? This question, as we shall later discover, is fundamental to the argument I make in this book. Beginning now, as these analyses often do, in ancient Greece, we can begin to see examples of what could potentially be considered direct arguments for freedom of speech. The first example is the ancient Greek concept of parrhesia—the act of speaking fearlessly or candidly. Joris van Eijnatten writes that this tradition was “regarded as both an oratorical and an ethical requirement” in ancient Athens (Van Eijnatten, 2011, pp.  21–22). Moreover, Athenians considered themselves able to speak their minds freely as an undeniable aspect of their existence. It is for this reason that parrhesia fails Haworth’s test of what counts as a true defence of free speech. Recall that for an act of speaking to count as free speech, it must be something that needs to be protected (the first clause). It would therefore appear that parrhesia is not freedom of speech because just as the freedom to breathe cannot be taken from a person without destroying them completely, parrhesia can never be taken away from an Athenian. It is seemingly a part of their being.

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Another ancient Greek argument worth looking at, this time seemingly against freedom of speech, appears in the work Plato. There is a line in Plato’s Republic that reads as follows: “[w]e must begin, then, it seems, by a censorship over our story-makers, and what they do well we must pass and what not, reject” (Plato, 1999, p. 624). While on the face of it, this is no doubt an argument for some form of censorship, the context of this line reveals more nuance to the case. The Republic is a work that, among other important things, has Plato describe his ideal vision for the political organisation of the state. This state is one that is ruled over by a class of ‘philosopher kings’ whose dedication to wisdom ensures that they remain just rulers. The above statement refers to the educational process to which these philosopher kings would be subject. Considering this, two reasons that could hold us back from classifying this as a true breach of freedom of speech are that, first, this line specifically refers to the philosopher kings and not to society as a whole. Plato does not go on to make any other censorious arguments concerning the masses, so we can assume his censorship is reserved strictly for the ruling class. This, however, has the potential to breach clause (iii) of Haworth’s framework—that freedom of speech must necessarily be for all—which brings us to our second reason, aptly put by Haworth himself: “you don’t have to be Stalin, or any sort of dictator, to believe that young children should be prevented from reading certain material. You just need to be a morally responsible parent” (Haworth, 1998, p. 21). As we shall come to see, these sorts of adjudications in free speech theory are not irregular. In reality, being a literal free-speech absolutist is a very dedicated position, requiring some very serious moral sacrifices in other areas—but more on that later. Before we leave the Republic, however, there is one more section that requires our attention: the noble lie. The noble lie is often brought up in connection to arguments that Plato was advocating for more widespread censorship and totalitarianism. He writes of a conspiracy to knowingly tell a lie to the people in order to keep them in order: “[h]ow, then, said I, might we contrive one of those opportune falsehoods of which we were just now speaking, so as by one noble lie to persuade if possible the rulers themselves, but failing that the rest of the city?” (Plato, 1999, p. 658). I am inclined to agree with Haworth’s analysis of this passage, wherein he argues that this is not a direct act of censorship. According to his reckoning, “it is a form of thought control”, and as such, “related to censorship”

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and free speech without actually being censorship in-itself (Haworth, 1998, p. 21). However, he is not so quick to dismiss this section, conceding that this passage could be used effectively to make the case that Plato was an “advocate of totalitarianism” and “an enemy of free speech” (Haworth, 1998, p. 21). However, he is not willing to concede his earlier argument that greater Athenian society was normatively free and open and that Plato, for his part, “was a kind of ideological renegade” and not the standard bearer for typical Athenian thinking on such matters (Haworth, 1998, p. 21). Ultimately, what is being reiterated here is that freedom of speech is specifically a normative issue. Freedom of speech is not innate. Two things to always remember: one, you cannot exercise free speech alone on a desert island; and two, there is always a possibility that your freedom of speech can be taken from you (however unjust that may be). Therefore, in regard to the ancient Greeks and parrhesia, freedom of speech does not appear to exist in the same way we recognise it today. In a society where free expression is intertwined within the being of each citizen and to have such freedom removed would be considered abnormal or not possible, such a society does not require freedom of speech in the way that we now conceive of it.

John Milton: The Beginnings of the Classic Defence The conditions of the following medieval period were not truly conducive to arguments concerning freedom of speech. The strict hierarchies reinforced by feudal economics and the religious orders left little room for concepts such as freedom of speech to be grasped. Arguments for religious toleration were often more pressing and thus more common during this era. It was not until the proto-enlightenment period of the seventeenth century that free speech truly began to gain prominence on its own. While there were many arguments beginning to emerge around this time and heading into the eighteenth century, 1 there is one book that stands out as the beginning of the argument for freedom of speech that we still utilise to this day, John Milton’s Areopagitica. First published in 1644, the text is Milton’s response to the Parliament of England’s Licensing Order of 1643. The proposed order would see that only books approved 1  For a comprehensive look at these arguments see Powers, E. (Ed.) (2011). Freedom of speech: The history of an idea. Bucknell University Press.

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by the state or religious authorities of the day were able to be published. This system of licensing was not uncommon in Catholic states, having gained traction during the inquisition. The proposed system involved every planned publication being reviewed by licensers who would then grant or deny permission for the work to be published based on the content of the work. Milton’s work lays out his criticism of such censorship, arguing that freedom from censorship must be preserved for the good of humanity. Areopagitica is considered by Haworth to be the origin of what he terms the classic defence of freedom of speech—an argument that he views as later being inherited, developed and popularised by John Stuart Mill in 1859s On Liberty. The main argument is itself epistemic in nature, 2 contending that censorship is dangerous because it denies humanity a chance to discover the truth of matters, which in this argument is held up to be the ultimate end of any and all means. For this reason, I choose to label freedom of speech justified in this manner as being epistemic freedom of speech. This version of freedom of speech will eventually (through the prism of Mill’s developments) come to be the prominent justification used for free speech in the contemporary world. Interestingly, Milton’s arguments centre not on a generalised plea for freedom of speech or a free press. Instead, he focuses specifically on making a case against preventative censorship. This limitation in scope is important to note for, as we shall see, this can cause problems for anyone seeking to import Milton’s arguments into a greater case for freedom of speech as a whole. Another point of note that can potentially cause issues for anyone seeking to adapt Milton’s argument to our contemporary times is that his argument is a decisively religious argument being made in a religious society. The theocentric nature of Milton’s world meant that the separation of church and state in political affairs that exists currently would not have been present. For example, Milton’s arguments do not extend (by his own reckoning) to Catholics, who at the time were considered the religious and political enemies of the Protestant British state. With these limitations in mind, let us now take a look at how Milton attempts to push back against the preventative censorship of the religious and political authorities of his day.

 There are other additional arguments which are not epistemic in nature, as I will address.

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Milton’s Argument Milton’s argument is a product of the conditions of his time. There was much political and social upheaval taking place in England around the time of his writing, including the first English Civil War that had begun in 1642, as well as continuing religious tensions between those of the Protestant and Catholic faiths. Hence, while there are aspects of his argument that are developed by later thinkers regarding a more general philosophy of freedom of speech, Milton’s contentions are aimed at securing a particular outcome in a particular context. Milton begins by addressing his criticism of the parliamentary ordinance: “That no book, pamphlet, or paper shall henceforth be printed, unless the same be first approved and licensed by such” (Milton, 2014, p. 101). He wants to attack the ordinance from a number of angles, arguing that it is against both reason and God to suppress publishing in such a way. Milton makes his case by first noting that it is only the Catholics who have engaged in a programme of censorship akin to the one proposed by the parliament (an argument made persuasive by the anti-Catholic nature of the government at the time). He addresses the history of censorship as it appeared throughout ancient Greece and the Roman Empire but finds that such an expanded programme of censorship had not been seen historically until the Council of Trent and the Spanish Inquisition. The expansiveness of the Catholic censorship programme involved “expurging indexes that raked through the entrails of many an old good author” (Milton, 2014, p. 105). This involved stretching beyond the reaches of the traditionally considered ‘heretical’ texts, “but to any subject that was not to their palate” (Milton, 2014, p. 105). The culmination of the programme was “to ordain that no book, pamphlet, or paper should be printed … unless it were approved and licensed under the hands of two or three glutton friars” (Milton, 2014, pp.  105–106). Thus, Milton concludes that the preventive censorship the parliament wants to engage in is rooted firmly in the Catholic tradition. He trusts that the parliament would want to avoid any action that could be considered a ‘Catholic’ practice. Milton then moves on to make an argument based on knowledge and learning. He makes the very specific and religious case that the study of heretical books is first, allowed by God and second, beneficial to the Christian reader. Milton argues that many prominent biblical figures were well versed in ancient texts, including Moses, Daniel and Paul. Furthermore,

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he contends that God gave man the freedom to reason and, as such, should be left to discern the good and evil contained in books for himself. Ultimately, this freedom will be used, Milton argues, “to discover, to confute, to forewarn, and to illustrate” (Milton, 2014, p. 110). It is therefore the freedom to discern which holds importance for Milton. Without this freedom, man would not need to choose God to be good, he would be compelled to be good, leaving him in a state of intellectual infancy. Censorship will only lead to “the fall of learning, and of all ability in disputation”, preventing people from freely finding their way to God (Milton, 2014, p. 113). Switching gears, Milton addresses the would-be censors themselves, questioning their own ability to remain uncorrupted in their duty: “how shall the licensers themselves be confided in, unless we can confer upon them, or they assume to themselves above all others in the land, the grace of infallibility and uncorruptedness?” (Milton, 2014, p. 113). The basic question here is: if we want to ban publications because we cannot trust the population not to be corrupted in reading such materials, what is to stop such publications from corrupting the censors themselves? They must read all potentially corrupting materials to fulfil their duty as safeguard to the masses. This argument is a version of assuming infallibility—an argument that we explore in more detail when we address Mill’s version later in the chapter. There is a certain force to this argument as Milton presents it, thanks to the specificity of its target and its existence in a confined context. Milton’s point—that it is a mistake to think someone who takes up the job of censor immediately attains unbreakable moral strength and superiority—is one that we can take seriously provided it remains within its given context. We will take a more detailed look at this soon, when I address Mill’s version of the argument. Finally, we will address Milton’s arguably most significant contention— his epistemic argument. Milton’s understanding of truth is informed by scripture, believing it to have entered into the world “with her divine master, and was a perfect shape most glorious to look on” (Milton, 2014, p. 130). He consequently recounts that once God ascended into heaven, truth was scattered by a “race of deceivers” (Milton, 2014, p. 130)—leading to Milton holding what Haworth (1998, p. 120) describes as a “jigsaw puzzle” view of the pursuit of truth; that it is a religious duty for the people to hunt for the scattered pieces of truth in order to piece it back together for the second coming.

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The idea that truth can be found in scattered parts needing to be reassembled into the whole introduces one of the most critical elements of the classic defence argument: censorship prevents the potential gleaning of these partial truths from otherwise dangerous or heretical publications. For Milton, the search for these scattered pieces of truth—no matter where they may lay—is a crucial aspect of being a part of a godly and harmonious society. Thus, Milton argues that the search for the truth should not be contained: “To be still searching what we know not, by what we know, still closing up truth to truth as we find it … this is the golden rule in theology as well as in arithmetic, and makes up the best harmony in a church; not the forced and outward union of cold and neutral and inwardly divided minds” (Milton, 2014, p. 131). The search for truth is also considered to be vital by Milton because of its exercising effect on the mind: “Well knows he who uses to consider, that our faith and knowledge thrives by exercise, as well as our limbs and complexions” (Milton, 2014, p.  127). Milton argues that without this ‘exercise’, our minds become atrophied, leading us to trust long-held beliefs without proper questioning or consideration. This argument (when made later by Mill) has become known as the ‘dead dogma’ argument. The argument describes how limiting access to knowledge will stifle the learning of the people, leading them to accept stagnant ideas that may have lost their connection to the actual truth of things (and consequently, for Milton, to the truth of God). The consequence of this is a potential for corruption in the running of both state and church affairs, leading to a greater suppression of the people. Without people possessing the means to discover and learn the truths of their world on their own, it becomes very easy for them to be misled into believing falsehoods by those in positions of unquestionable authority. Milton pleads with the parliament to recognise in themselves that they have moved beyond such a need for domination, arguing: “We can grow ignorant again, brutish, formal and slavish, as ye found us; but you then must first become that which ye cannot be, oppressive, arbitrary, and tyrannous, as they were from whom ye have freed us” (Milton, 2014, pp. 135–136). It is his hope that this epistemic argument will help persuade the parliament to hold off from the mass censorship of publications. Last, before we leave off from Milton, it is important to address one of the fundamental flaws in his position, at least according to his presentation of his arguments. What I am referring to is the intolerance of Milton to

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those who do not share in his Protestant faith—especially those affiliated with ‘popery’ (Catholicism): This doubtless is more wholesome, more prudent, and more Christian that many be tolerated, rather than compelled, I mean not tolerated popery, and open superstition, which as it extirpates all religions and civil supremacies, so itself should be extirpate, provided first that all charitable and compassionate means be used to win and regain the weak and the misled: that also which is impious or evil absolutely either against faith or manners no law can possibly permit, that intends not to unlaw itself: but those neighbouring differences, or rather indifferences, are what I speak of, whether in some point of doctrine or of discipline, which though they may be many, yet need not interrupt ‘the unity of spirit’, if we could but find among us ‘the bond of peace’. (Milton, 2014, p. 138)

What we can see here, quite clearly, is that Milton’s argument is very specific in who it is meant to be representing—namely, Protestant Christians. Milton appears paradoxical in his suggestion that there is nothing more ‘wholesome’, ‘prudent’ and ‘Christian’ than extending toleration, when he then immediately retracts his toleration from Catholicism and other ‘superstitions’, going so far as to call for their complete extirpation. Thus, we gain a greater understanding of Milton’s purpose in making his claim to the parliament—he wants his argument for anti-censorship to extend only to those who are of the Protestant faith. As quoted above, for Milton, there should be no law that can protect the impious. His ideal is to unite the Protestant Christian factions (the most “worthy a deed”) rather than unite all people (Milton, 2014, p. 139). Because of this, we see the limits in Milton’s argument against preventative censorship. His unwillingness to extend his cause to cover all peoples of all faiths leaves him short in terms of providing a comprehensive argument that could be representative of a case for freedom of speech in any greater context. The specific nature of his argument and its religious character make it unsuitable for export into a more modern scenario. However, this is not the end of the classic defence; it is only the beginning. It was not until over two hundred years later that it would be presented to the world in its most enduring form.

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John Stuart Mill: The Fruition of the Classic Defence It was during the nineteenth century that the classic defence of freedom of speech found its greatest champion—the political theorist John Stuart Mill. To this day, his work defending freedom of speech is still widely cited and celebrated, as Haworth (1998, p. 3) notes: “it is Mill’s version of [the classic] defence which remains the fullest, the most coherently argued, and the most influential”. Haworth (1998, p. 3) even goes as far as to declare Mill’s version of the argument the “classic version of the classic defence” for these reasons. Mill’s classic defence—his epistemic argument—is contained within his 1859 work, On Liberty. Specifically, it is found in the second chapter, entitled ‘Of the Liberty of Thought and Discussion’, which outlines an argument for what we recognise today as freedom of speech. It is important to note that Mill does make other arguments for personal liberty in general that are separate from his epistemic claims. These arguments, such as his normatively based ‘harm principle’ and his argument from individuality, can be applied to freedom of speech (as an extension of personal liberty) and therefore will also be addressed. Returning to the task at hand, Mill’s version of the classic defence revolves around ‘four grounds’, which he believes are necessary for the well-being of humanity: “We have now recognised the necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion, and freedom of the expression of opinion, on four distinct grounds” (Mill, 2006, p. 60). These four grounds are a summation of the entire second chapter of On Liberty and the encapsulation of Mill’s epistemic position. They are as follows: First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. Second, though the silenced opinion may be in error, it may, and very commonly does, contain a portion of the truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in a manner of prejudice, with little comprehension or feeling of its rational grounds.

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And not only this, but fourthly, the meaning of the doctrine itself will be in danger of being lost or enfeebled, and deprived of its vital effect on the character and conduct; the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground and preventing the growth of any real and heartfelt conviction from reason or personal experience. (Mill, 2006, pp. 60–61)

These ideas are not new in themselves—as we have seen in our discussion of Milton’s work—yet Mill’s development and application of the concepts within his own historical era are novel, as is their development in a notably more secular form. Mill’s England was one that had seen great change since the time of Milton’s writing. Mill addresses his own historical context within On Liberty, noting specifically how an argument against government press censorship (such as Milton’s in Areopagitica) is no longer needed: The time, it is to be hoped, is gone by, when any defence would be necessary of the ‘liberty of the press’ as one of the securities against corrupt and tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they should be allowed to hear. (Mill, 2006, p. 22)

Furthermore, while religion still held much importance within society, Mill’s era was far less theocentric, resulting in a much more secular intellectual climate. This informed Mill’s arguments, which are, as a result, far less concerned with God than those made by Milton. Mill’s primary concern shifts away from the suppressive powers of government (or the sovereign) and instead onto “the nature and limits of the power which can be legitimately exercised by society over the individual” (Mill, 2006, p.  7). This potential for coercion of the individual by the masses is referred to by Mill as the tyranny of the majority. While Mill was satisfied that democracy was suitable to curb the tyrannical impulses of governments, he feared it was not enough to stem the potential oppression of a minority by the populace majority: The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or

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the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. (Mill, 2006, p. 10)

Mill believes this form of tyranny, which he categorises as a ‘social tyranny’, to be far more dangerous than state tyranny. Where the penalties for social dissent may not be as direct or extreme as those carried out by the state towards those engaged in political dissent, “it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself” (Mill, 2006, p. 11). It is because of this that Mill (2006, p. 11) believes it critical that society does protect itself from the “tyranny of the prevailing opinion and feeling”. He does this by dedicating himself to the establishment of ‘freedom of thought and discussion’ for all people. Mill begins his analysis by noting that any state that pursues interests that are separate from or counter to the interests of its people is guilty of tyranny. This idea had been long established and was not a controversial idea at the time of Mill’s writing. Mill’s specific contribution to the argument is to bring attention to what happens when the state acts in concert with the voice of the people to coerce the minority elements of society. Mill denies the state any legitimate right to coerce individuals to conform to the opinions or feelings of the majority, considering this an act of tyranny. He even goes as far as to claim that “[i]f 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 mankind” (Mill, 2006, p. 23). Mill (2006, p. 23) argues that by silencing the dissenting opinions of others, we are “robbing the human race” of the ability to either exchange their opinion for the dissenting opinion (should the opinion actually be true) or to gain a clearer, more nuanced perception of their own opinions through its “collision” with the dissenting opinion (should it remain false). This echoes an earlier argument made by Milton (2014, p. 102), which reads: “he who destroys a good book, kills reason itself, kills the image of God”. This connection displays the intellectual lineage of Mill’s position—showing him to hold the same ‘jigsaw puzzle’ view of truth that Haworth attributes to Milton. However, unlike Milton’s religious model of thinking, Mill’s argument is delivered through his consequentialist/ utilitarian framing, wherein he values truth due to his belief that “[t]he

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truth of an opinion is part of its utility” (Mill, 2006, p.  29). What this means is that instead of reassembling truth as a matter of religious devotion or duty, Mill views the discovery and use of truthful ideas and opinions as that which allows society to best progress towards the overall betterment of humanity. Thus, he argues for a free and open discourse to achieve this end. With this in mind, we can return to looking at Mill’s four grounds—four statements through which Mill argues his case against the silencing of opinion.

Mill’s Argument The first ground—also known as assuming infallibility—is where Mill attempts to make the case that an individual’s opinion should not be silenced, no matter how unpopular it may prove, as any such opinion holds the possibility of potentially being true. Mill adds that to censor in such a fashion is then to assume the infallibility of one’s own knowledge. This idea is a reflection of the earlier argument we saw in Areopagitica, wherein Milton questioned the integrity of the licensers to be employed by the state. To reiterate, Milton questioned whether these men entrusted to decide whether or not a publication was suitable to pass through into the public realm were to be thought of as incorruptible and infallible as to always make the correct decision. Mill appears to be taking this idea and expanding beyond the narrowness of just the licensers and applying it to the entirety of the population. On the face of it, Mill’s argument here can appear to have merit, but a closer look reveals some serious cracks in its logic. Mill’s attempt to expand upon Milton’s earlier argument causes tension not present in Milton’s original formulation of the principle. The main issue with Mill’s version of the argument relates to its scope. Milton only wants to condemn the censorship carried out by the (at the very least) morally questionable licensors. His focus is therefore on the moral infallibility of the licensers themselves, which allows his argument to have weight. Mill, on the other hand, falls short of being persuasive because of the sheer overreach of the scope of his position, attempting to claim that anyone attempting to silence any expression of opinion is assuming infallibility in their own knowledge. Because of this, any example wherein speech is prevented that can be shown to not be assuming infallibility causes that whole premise to collapse. For example, someone who posts a recipe online for making homemade explosives should be censored not because the information they are

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disseminating is false but because it is dangerous. This is a serious problem for Mill’s first ground—one that I cannot see it overcoming. Mill’s second ground is also reminiscent of an argument made by Milton—that even false opinions may very well contain partial truths that can only come to light if such opinions are allowed to be expressed as part of the discussion—the ‘jigsaw puzzle’ approach. This argument seems to hold much more sway in terms of its internal logic than the first ground. It appears reasonable to assume that partial truths could be present even in opinions that we are predisposed to immediately shun. We are, after all, not infinite in our understanding, and it makes sense that we could often be throwing the baby out with the bath water without even realising it. However, this position is often heavily criticised due to the externalities that arise from its implementation in real-world circumstances. Scholars from what has become the controversial field of critical race theory (CRT) argue that the permitting of free expression of all opinions denies the real impact that such expressions can have on the people who hear them—that it is unjust to allow some to suffer greatly at the cost of potentially gaining partial truths. This relates back to the very pertinent question as to whether truth should supersede harm in acts of expression and to what degree. While some more conservative supporters of free speech may reject the approach of CRT and other more progressive schools of thought towards this question, the question itself remains critical to the project of this book. As such, we will return to explore these arguments in detail in Chap. 4. Mill’s third and fourth grounds can be understood together. The third ground states that any opinion, even if known to be true, must be continued to be tested and scrutinised to ensure that it does not become an opinion held without a thorough understanding of the reasoning for its truth. The fourth states that such an opinion, if held only as a matter of tradition or custom, risks becoming a dead dogma—an opinion held only as a matter of course, with nothing to be gained from its knowledge. These arguments, once again, appear sound—especially when you provide cases that suit the intention of what this argument is trying to achieve. The initial rejection by those in authority of the discovery that the earth revolves around the sun, for example, shows us the perfect instance of a dead dogma being propped up by institutionalised power without proper consideration for the real truth of matters. Such examples stir us into a mode of thinking wherein the constant questioning of all things could appear reasonable.

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However, once again, there are a number of issues with Mill’s thinking here. The first is the most obvious—if the only way an opinion can be trusted is if it submits itself to rigorous, perpetual tests of validation, then we have a problem. There are many processes that exist within our lives about which we hold opinions. Having a full understanding of the underlying mechanisms that govern those processes is not feasible (or sometimes even possible). Holding an understanding that fire can destroy the entire contents of your home should not require you to systematically test your theory by throwing your worldly possessions one-by-one into a bonfire to ensure the truth of your convictions. You may discover some things can survive the flames, but it is not reasonable to have to test this in this way. Less facetiously, it is important that some measure of our population engage in activities that question and push the limits of human understanding towards a better future, but to hold all people in the ‘majority’ to account for this (inclusive of all their opinions) is a stretch at best. One further problem with Mill’s dead dogma argument is one brought up by media theorist Gavan Titley, which we can call the paradox of closure. The issue arises because of a tension in Mill’s argument between his ideal end state of knowing the truth of all things (to have achieved maximum utility for the benefit for humanity) and his dead dogma argument, which requires that all opinions be continuously questioned regardless of their accepted truth status. The result is that Mill’s position can never lead to a state of truly knowing anything, as all things must be kept open for questioning regardless of how settled they may seem. Titley uncovers the true ramifications of this type of thinking when you apply it to examples, such as racism in society (Titley, 2019). Consider that despite mainstream societal knowledge and acceptance that racism is abhorrent, Mill’s theory will allow this notion to be questioned for all time, leading to all sorts of negative real-world consequences. These are serious charges against the validity of Mill’s argument, charges which I believe Mill’s epistemic justification for freedom of speech fails to stand up to—and this is not the end of it. There are further criticisms of Mill’s work, but we shall save them for the following chapter, where I shall critique the idea of epistemic theories for freedom of speech on the whole. At this point, it is my hope that we can come to an understanding that while Mill’s classic defence is both popular and influential, it is by no means a perfect argument for freedom of speech. Haworth (1998, p. 217) concludes of Mill’s defence of freedom of speech that although the “arguments are not terrific in all

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respects … even so, they are the arguments we have, at least for the present”. I disagree with this conclusion. I believe there is a better way to justify freedom of speech for all within our contemporary world. However, first, let us address the crisis of free speech in contemporary society.

References Garton Ash, T. (2016). Free speech: Ten principles for a connected world. Atlantic Books. Haworth, A. (1998). Free speech. Routledge. Hume, M. (2015). Trigger warning. William Collins. King, R. (2016). On offence. Scribe. Lukianoff, G., & Haidt, J. (2018). The coddling of the American mind. Allen Lane. Mill, J. S. (2006). On liberty and the subjection of women. Penguin Classics. Milton, J. (2014). Areopagitica and other writings. Penguin Classics. Plato. (1999). The collected dialogues of Plato. Princeton University Press. Scanlon, T. (1972). A theory of freedom of expression. Philosophy and Public Affairs, 1(2), 204–226. Titley, G. (2019). Racism and media. Sage Publications. Van Eijnatten, J. (2011). In praise of moderate enlightenment: A taxonomy of early arguments in favor of freedom of expression. In E. Powers (Ed.), Freedom of speech: The history of an idea. Bucknell University Press.

CHAPTER 3

Epistemic Freedom of Speech in Practice

Our world has seen an explosion in free speech conflicts in recent times. Concern about what people should or should not be able to say (or hear) appear to have reached new heights, at times completely capturing the media cycle and public discourse. Terms such as ‘hate speech’ and ‘political correctness’ have re-entered popular discourse alongside continuing public concerns over privacy and newer perceived threats to freedom, such as the growing saturation of misinformation both in the media and in online spaces. In the face of this, the task of those who would invoke freedom of speech to delineate the boundaries of acceptable acts of expression is to justify their claim. The problem with this—as we have discovered in the previous chapter’s analysis—is that justifying freedom of speech can be much more difficult than one might think at the outset. Ensuring that freedom of speech is not simply a ‘freedom to speak’ but rather a right to free expression that shields you from unjust censorship and that remains extended equally to all within society remains a difficult task, with many complex and nuanced contexts to account for. It is not uncommon for philosophical arguments justifying normative actions to come unstuck while being bombarded during application in the ‘real world’. Most philosophers and political theorists working in this field will often provide real-world analogies to try and display or draw attention to how their theory works in real-world circumstances to best circumvent this issue. However, despite best efforts, things can get

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through the cracks—cracks that can grow into giant fissures if not adequately addressed. If epistemic freedom of speech—the free speech justification proffered by John Stuart Mill and those who have been influenced by him—is truly the best we have for our contemporary world, then surely it must stand up against the onslaught of free speech crises that arise every day in the real world. The advent of the internet and the wider acceptance of socially progressive values, just for a start, provide unique challenges that Mill would certainly not have prepared for when delivering his argument in the mid-nineteenth century. Therefore, it is our task now to delve into some of these concerns and address how the epistemic model fares when faced with these modern issues.

The Liberty of the Seminar Room Leaving aside for now all of the previous criticism I have levelled at Mill’s epistemic argument for freedom of speech, there is another angle from which we must assess the soundness of Mill’s claims—how epistemic free speech functions in practice, or in the ‘real world’, as it were. After all, normative issues do not exist solely in theoretical spaces. The point of having a theory of moral action is to have it operate successfully (and as intended) in real-world applications. With this in mind, I can now introduce a major criticism of Mill’s position. This criticism, once again courtesy of Alan Haworth, is that the epistemic argument for freedom of speech is ultimately flawed because it relies too heavily on a set of preconditions that are not always fulfilled. Thus, the particular kind of liberty afforded by epistemic free speech justifications is a limited liberty that falls short when subject to real-world conditions. Haworth refers to it as the liberty of the seminar room. He provides the following analogy to demonstrate this idea: Picture it as follows: a group of earnest and rational individuals is assembled. Their purpose is to find truth. Members of the group take turns to advance propositions – ‘opinions’ – for consideration by the others. Arguments for and against are elaborated and tried out in the hope that some advance towards truth will be made. All opinions, even those which are on first appearance quite wild and extravagant, are treated with equal seriousness. (Haworth, 1998, p. 27)

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These are the only conditions under which Mill’s epistemic argument truly functions. The problem is that these conditions are rarely, if ever, met in the real world. For instance, there will always be concerns surrounding the personal agendas that people bring to the ‘seminar room’ of any debate, as well as the conditions that preexist and frame the debate. This idea is echoed in the work of literary theorist Stanley Fish (1994, pp.  16–17), who writes of a supposedly free and equal ‘marketplace of ideas’: “the marketplace has to be set up – its form does not exist in nature – and since the way in which it is to be set up will often be a matter of dispute, decisions about the very shape of the marketplace will involve just the ideological considerations it is meant to hold at bay”. The seminar room model is further called into question by the modern-­ day realities of the internet and social media. The situation unfolding in online spaces—spaces with arguably the most potential for the free and open discussion of ideas to take place—could not be further from the seminar model. As argued by figures such as Angela Nagle (2017, pp.  115–116), in these spaces, we have a context where some ‘participants’ in the discourse only participate in order to create the maximum amount of impact, damage, or controversy. Others seem only to participate solely to ‘call-out’ and shame people to garner the status of being the most ‘virtuous’ within their in-group. Neither of these kinds of ‘participants’, arguably, are overly interested in getting to the truth of anything, let alone dutifully hearing the other out. Continuing this line of thought, I would argue that not only is the epistemic position no longer viable in a modern context but that it has never been viable at any point in history. Consider what Hannah Arendt (2003, p. 545) writes in Truth and Politics: “[n]o one has ever doubted that truth and politics are on rather bad terms with each other, and no one, as far as I know, has ever counted truthfulness among the political virtues”. Arendt is conveying an important message here: that truth has never been a goal of politics. While she admits that “[n]o permanence, no perseverance in existence, can be conceived of without men willing to testify to what is and appears to them because it is” (Arendt, 2003, p. 547), she argues that, as thinkers such as Machiavelli have explored, governments will often wilfully subvert or ignore ‘factual’ truths in the pursuit of furthering their own interests or agendas: If we understand political action in terms of the means-ends category, we may even come to the only seemingly paradoxical conclusion that lying can

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very well serve to establish or safeguard the conditions for the search after truth … And lies, since they are often used as substitutes for more violent means, are apt to be considered relatively harmless tools in the arsenal of political action. (Arendt, 2003, p. 546)

Arendt’s argument is based upon her dichotomous understanding of truth, wherein the concept of truth is split between two conceptions: rational truths and factual truths. Arendt (2003, p. 549) defines rational truths as truths whereby “[t]he opposite of a rationally true statement is either error or ignorance”. This includes examples such as mathematical proofs and scientific theories. Factual truths, on the contrary, are truths that concern the “facts and events” that compose the collective history of the world (Arendt, 2003, p. 548). The opposite of disclosing factual truths is either lying or ignorance, witting or unwitting. It is factual truths, therefore, that  “constitute the very texture of politics” and, as such, are the most in danger of being manipulated for political gain (Arendt, 2003, p. 548). Arendt (2003, p. 548) observes that while rational truths remain constant regardless of interference, factual truths are “infinitely more fragile things” that are forever at risk of being lost or suppressed through political machinations: The chances of factual truth surviving the onslaught of power are very slim indeed; it is always in danger of being manoeuvred out of the world not only for a short time but, potentially, forever … Once they are lost, no rational effort will ever bring them back. Perhaps the chances that Euclidean mathematics or Einstein’s theory of relativity  – let alone Plato’s philosophy  – would have been reproduced in time if their authors had been prevented from handing down to posterity are not very good either, yet they are infinitely better than the chances that a fact of importance, forgotten or, more likely, lied away, will one day be discovered. (Arendt, 2003, p. 548)

Arendt’s main concern, writing in the wake of Hitler and Stalin, is that there is always a risk that political manipulations—through actions such as historical revisionism—will be used in order for a government to move the state towards its own conception of the ‘good society’. Tellingly, Arendt (2003, p. 549) notes that the opposite of a factual truth is “mere opinion”—yet if enough people hold an opinion, it can overturn the truth,

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“for opinion, and not truth, belongs among the indispensable prerequisites of all power”. Thus, opinion is mobilised against truth as a necessary means of gaining and harnessing political power. The importance of truth is discarded as an obstacle, as Arendt (2003, p. 549) writes, “not even the most autocratic ruler or tyrant could ever rise to power, let alone keep it, without the support of those who are like minded”. While Arendt does appear to be specifically referring to the political actions of governments within her arguments, I do not see any reason to reject expanding her reasoning to the greater political actions of the wider community. Remember that for Mill, social tyranny is, in some ways, even more dangerous to the individual than state tyranny. Following this, the argument that Mill makes in On Liberty, that “[t]he truth of an opinion is part of its utility”, is then, in one sense, called into question by Arendt’s claims. 1 Arendt makes the opposite case to Mill—that the truth is mostly politically useless, being both unwavering and impartial to those living in society: “Truthfulness has never been counted among the political virtues, because it has little indeed to contribute to that change of the world and of circumstances which is among the most legitimate political activities” (Arendt, 2003, p. 564). In contrast, she finds much political value in lying, noting: “Since the liar is free to fashion his ‘facts’ to fit profit or pleasure, or even the mere expectations of his audience, the chances are that he will be more persuasive than the truthteller” (Arendt, 2003, p. 564). Thus, the argument from Arendt can be seen in this sense as a direct counter to Mill’s epistemic position. Where Mill argues that greater amounts of open discussion of differing opinions are required to reach truths that will be utilised to further human society, Arendt counters that allowing more discussion can only serve to potentially cloud the truth, which in itself is mostly irrelevant in political operations. Therefore, if we are to believe Arendt, we could conclude here that the epistemic position is, and always has been, a poor justification for freedom of speech. With this in mind, let us now address how epistemic freedom of speech and its seminar room requirement can lead to some poor outcomes in real-world applications. It is time to look at epistemic freedom of speech in practice.

 In one sense, since Arendt acknowledges that if a politician can tell a truth—when the facts speak in their favour—they usually will. 1

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Climate Crisis and the Marketplace of Ideas For any justification of freedom of speech, a challenge arises that must be contended with if it is to serve sustainably in any free society worthy of the name: the ability to remain adaptable, and therefore consistent, across time. As society progresses and evolves, new opportunities arise for those who would wish to exploit older, entrenched justifications for free speech, with this exploitation often being to the benefit of their own agenda at the expense of the greater populace. This is concerning, as any justification that allows freedom of speech at the expense of, for example, the continued habitability of the planet for future generations is surely in need of serious reform, if not outright replacement. The compounding dangers of the global climate crisis have been allowed to continue with minimal resistance from developed nations in large part thanks to the dissemination of misinformation and the playing of rhetorical games allowed by developed society’s epistemic justification for freedom of speech. Justifying free speech in this way has many initial benefits; for example, it ensures a high level of freedom for individuals to formulate and discuss ideas, even if—and this is critical—they are using this freedom to spread falsehoods. Grounding free speech in the search for truth is also a seemingly clever way of avoiding having the justification be manipulated into serving any ideological faction over another. However, as time has progressed, the flaws in Mill’s theory have made themselves apparent. This includes flaws that, in a reversal of expectations, enable it to be manipulated for ideological purposes, including in ways that are, unfortunately, potentially devastating to the planet and its human population. To obtain a fuller understanding of this, let us take some time to consider the climate debate in more detail. In regard to the reality of climate crisis and the very real impact it is having on the planet, the debate is over, or at least, it should be. As Naomi Oreskes and Erik M.  Conway state in ‘Challenging Knowledge: How Climate Science Became a Victim of the Cold War’: “Since the early to mid-1990s there has been a consensus in the scientific community about the basic facts of global warming, which is why the Intergovernmental Panel on Climate Change (IPCC) is able to say with assurance that ‘most of the warming observed over the last 50 years is attributable to human activities’” (Oreskes & Conway, 2008, p. 55). Oreskes and Conway go on to outline in painstaking detail the history of climate science and how it came to reach such a consensus regarding anthropocentric climate change,

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which I will not repeat here. However, the question remains: if the science is so settled, why then is there so much confusion in the general populace regarding the reality of the climate crisis? Lee McIntyre (2018, p.  21) writes that science denialism “can start from either an economic or ideological agenda”, categories that are not necessarily mutually exclusive. As to where climate denial began, Oreskes and Conway place it at the feet of the George C. Marshall Institute, an organisation initially founded circa 1984 as a think tank promoting Ronald Reagan’s Strategic Defense Initiative (SDI). After the Soviet collapse and the end of the Cold War, the Institute pivoted to address what was then most commonly referred to as global warming. The organisation was highly critical of the scientific consensus regarding the reality of man-made climate change and began to engage in strategies aimed at destabilising this scientific agreement. This opposition “appalled” the scientific community, who viewed the outright attack on scientific evidence to be a “perversion” and completely beyond the pale (McIntyre, 2018, p. 21). Many of the tactics used by the Marshall Institute to undermine science were learned during its formative period defending SDI or through the Institute’s members’ participation in other denial campaigns—most notably those run by industry-backed tobacco research institutes. Critically, for our purposes here, these tactics were designed around the Institute’s strategy of focussing principally on mass media. This is important because any operation of mass media will come into contact with freedom of speech theory. Consequently, there are two prominent media tactics of the Institute that need to be addressed. The reason for singling out these two strategies is twofold: one, they are tactics still very much in use today; and two, as I will demonstrate, their successful operation relies on taking advantage of the flaws in the epistemic justification for freedom of speech.

Two Media Strategies for Effective Science Denial The first of these strategies utilised by those associated with the Marshall Institute is focussed around the journalistic requirement of neutrality— that in order for news to be considered trustworthy, it must not be biased towards any particular ideology or agenda. The Marshall Institute took full advantage of this from its early stages, starting with its mass media defence of SDI against criticism from the Union of Concerned Scientists (USC). As Oreskes and Conway explain, the ever-present need for

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journalists to appear balanced allowed the Institute to create a false equivalence between the support shown for each side of the argument: A consistent theme of Marshal Institute materials was the demand for “balance” – that the USC position papers on SDI were one-sided, and journalists were obligated to present “both sides.” Fair enough, there were two sides of SDI, conceptually – support and opposition – but these two sides had very different numbers of experts associated with them. One was a large majority position, the other a small minority position. If journalists were to give both sides equal weight or space, this would effectively misrepresent the situation in the scientific community. Yet the institute’s insistence on gaining equal time for their (minority) views proved to be highly effective, and they later used the “balance” card in a host of other debates, including global climate change. (Oreskes & Conway, 2008, p. 64)

The continued significance of this strategy is apparent in the continued use of ‘balanced’ panel discussion segments used by contemporary news networks. As late as 2016, only 27% of American adults believed that there was a scientific consensus around anthropocentric climate change (McIntyre, 2018, p. 30). The question we should ask here then is what makes a strategy such as this so readily accepted by the people? Why are they willing to tolerate the potential of a blatant delivery of misinformation embedded within their news sources? The answer lies in the principles set in place by the epistemic justification of freedom of speech. Part of my confidence in this stems from observing just how tolerant mainstream society has become of the abuse of journalistic balance—a tolerance born from an entrenched acceptance of epistemic freedom of speech principles. The reason I contend that people are so willing to submit to ‘balance’ arguments is due to an unwavering loyalty to the Millian free speech project—namely, that only by maximising free speech can we attain the truth of matters and progress humanity forward. Thus, in regard to those peddling climate denial or other forms of junk science, one is inclined to remember Mill’s first and second grounds and accept that even though such opinions may appear false (either partly or entirely), there is a possibility that there is truth present in them (once again, wholly or in part). Therefore, according to Millian thought, it is better to allow such opinions to be heard and ‘collide’ with the ‘opposing opinion’ of near-­universal scientific consensus than to censor them and potentially silence a degree of truth. The implied result of this is that in the free ‘marketplace of ideas’,

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the truth of the climate crisis will be confirmed and reconfirmed through the repeated challenges provided by its science-denying opponents. In actuality, this is unlikely—especially when we consider the seminar room model criticism of the epistemic justification. To reiterate from earlier, the seminar room model criticises Mill’s philosophical framework as one that only provides ‘the liberty of the seminar room’ and cannot otherwise function effectively and sustainably in a real-world setting. In the seminar room, there are strict conditions that must be adhered to for freedom of speech to function in the way Mill wants it to. One of these conditions is that everyone participating is explicitly participating for the purpose of finding the truth. Another is that participants must dutifully hear each other out, regardless of their own preconceived opinions. Those of the Marshall Institute and others who follow in their footsteps provide a strong empirical case for how the seminar room model breaks down in real-world conditions. This occurs when they feign acceptance of these two conditions, yet in reality, reject the first and manipulate the second to further their own agenda. In regard to condition one—the search for truth—climate denialists are only concerned with the truth of matters insofar as it aligns with their own understanding of how society should best function. As soon as there is any deviation from their own ideological position, they discard the relevance of any opinion, regardless of its ‘true’ or ‘false’ status. This, of course, is not revealed publicly, as the ruse must be maintained to take advantage of other flaws within the justification. This is principally seen in how they treat the second condition, that people must dutifully hear out all arguments. The guarantee of an audience, regardless of the validity of one’s claims, is exactly what is being manipulated into service when climate denialists call for ‘balance’ in journalism. However, instead of creating a nuanced discussion in the pursuit of truth (as would occur in Mill’s seminar), what occurs in reality is the blatant exploitation of a free speech justification to purposefully create the appearance of nonconsensus to confuse the general population. The purpose of this is to serve the underlying ideological concerns of those who promote climate denialism: those who would profit from climate denialism. The second strategy is one that can be seen initially in how industry-­ funded tobacco research think tanks in the 1970s operated to obfuscate the mounting evidence that smoking cigarettes was harmful to humans. The aim of the strategy was to “find evidence or arguments that might cast doubt on the links between tobacco use and adverse health effects”

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(Oreskes & Conway, 2008, p. 67). As with the ‘balance’ strategy, the overall desired outcome of such a programme is the creation of doubt in the general public as to whether the science is settled. This allowed cigarette companies to keep producing their products and potentially avoid any legal liability due to alleged illnesses/deaths caused by smoking. This strategy of ‘continued research’ was then imported into the debate on climate change. To assess how this strategy functions, let us take another look at how it operates: The impact of these research programs is hard to assess, but their purpose is not. The goal was to develop arguments to confound the causal links between tobacco and cancer by emphasizing epidemiological uncertainties and biochemical complexities – in effect, to construct ignorance. (Oreskes & Conway, 2008, p. 68)

What is being described here is a situation in which advantage is being taken of the scientific method, wherein science makes findings based on inductive reasoning and thus can never make any claim with absolute, logical certainty. Having an understanding of this function means that one can legitimately continue to make scientific inquiries into any subject of interest (smoking, climate change, etc.) even if there is already settled agreement on the subject amongst the scientific community. Once again, I contend that the general acceptance of such behaviour is due to the entrenched notion of epistemic freedom of speech. If we recall the third and fourth grounds of Mill’s justification, we will find that in order for a true opinion to remain both justifiable and meaningful, it must remain open to being questioned at all times. Having this principle enshrined in society makes it easy, once again, for bad faith actors to take advantage of the system in place. The paradox of closure means that although finding the truth of all matters is the end state of epistemic freedom of speech, the need to avoid established truths losing their vibrancy in the minds of the populace requires the debate to never end. Those who promote climate denial utilise this paradox to always find ways to continue to question the certainty of scientific findings. As a result, just as the scientific connection between smoking and cancer was questioned, the connection between human activity and climate change continues to be placed under scrutiny, despite the overwhelming evidence in its favour.

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I do not want to misrepresent my argument here, the ability to make continued scientific inquiries is important, even in fields that appear settled. However, context is also very important, and one must always consider the motivations behind such research. It is critical to establish whether the research being conducted is truly for the benefit of scientific knowledge or rather for the ideological or economic benefit of those enabling such research. Considering this, it becomes clear that there is a problem with our current justification of freedom of speech. No effective and sustainable justification of freedom of speech should uphold the liberty of thought and discussion at the expense of the planet. Arguing that people should have free speech even if it means the end of human existence is an absurdity that therefore must be dealt with. However, this is not the end of the story. Epistemic freedom of speech not only allows for the effective mainstreaming of science denial but also functions very well in justifying that which it is primarily intended to defend against: censorship. The seminar room model, while ostensibly set up to foster and produce open discussion, can be inverted to do the exact opposite—shutting down discussion and silencing opinion. This can be seen in the actions of some of those who claim to be at the popular intellectual forefront of defending freedom of speech in society.

Civil Discourse and Censorship Some of the loudest voices defending freedom of speech in recent years come from those associated (or formerly associated) with the Intellectual Dark Web (IDW), a decentralised community of public intellectuals and online media figures of supposedly politically diverse backgrounds who have coalesced together primarily over a dedication to defending freedom of speech and the notion of what they commonly understand as ‘civil discourse’. Largely ignored by academia, they have nonetheless found a wider success, with some members achieving hefty amounts of continued international fame. It is because of this that the IDW have been a strong influence on the common understanding of what freedom of speech is and how it should be. The problem with this is that the version of freedom of speech peddled by the IDW—that based in civil discourse—is just the seminar room model by another name. The IDW as a collective identity gained prominence in the late 2010s due to a profile in The New York Times in 2018 that described the group as follows:

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Most simply, it is a collection of iconoclastic thinkers, academic renegades and media personalities who are having a rolling conversation – on podcasts, YouTube and Twitter, and in sold-out auditoriums – that sound unlike anything else happening, at least publicly, in the culture right now. Feeling largely locked out of legacy outlets, they are rapidly building their own mass media channels. (Weiss, 2018)

Membership in the group is tenuous, with prominent IDW figure Sam Harris (2020) even going as far as to call the group an “imaginary organisation”. However, a list of those most commonly associated with the group would include, in addition to Harris, Jordan Peterson, Ben Shapiro, Dave Rubin, Joe Rogan, and brothers Bret and Eric Weinstein. Reacting in many ways to the resurgence of ‘political correctness’ and emergence of ‘woke culture’ that has occurred in recent times (more on this in Chap. 4), the central locus of the IDW project revolves around the idea that there is no topic of discussion that is so controversial or damaging that it should be exempt from good-faith intellectual discourse. This includes, but is not limited to, discussion of highly sensitive subjects such as the validity of gay marriage/lifestyles, transgender identity, and racial determinism in IQ scores. To silence these discussions, they argue—as per Mill’s argument—would be to knowingly deny the reality of any potential truths that may come from  such discourse (however unlikely). What is apparently most important to them is that they are able to have the discussion, regardless of what may come of it. However, the key thing to underline here is this notion that discourse of such elements must remain within the parameters of what the IDW regards as civil discourse. Conversation can extend into any variety or depth of controversial subject matter without limit, but the conversation participants themselves must adhere to a strict structure of comportment to secure their continued participation in the discussion. In this way, the IDW participates in a seminar room model of discourse consistent with the requirements of an epistemic justification of freedom of speech. It is also from this that certain members of the IDW have utilised loopholes offered by the seminar room model to both avoid or otherwise shutdown discussions that they do not want to have. Thus, it would appear that some of the most popular and ardent defenders of freedom of speech we have are actually engaged in acts of censorship.

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IDW Censorship: Ideological and Financial There are two main reasons why the IDW engage in censorious actions: ideology and finances. Looking first at the ideological, certain IDW figures will often invoke a civil discourse defence of their decision to either avoid or leave conversations despite the chance for intellectual progress to be made. These situations most often occur when the IDW member is either experiencing, or at risk of experiencing, a rigorous intellectual challenge to their ideas. It becomes obvious in many of these situations (and we will address some examples in a moment) that those in the IDW in fact do not like to have their ideas challenged but rather enjoy only debating or discussing their ideas when they can be free from any serious intellectual scrutiny or criticism. However, as their entire branding (and therefore reputation) revolves around the idea that people shouldn’t shy away from hard discussions, they must come up with some reason to allow them to avoid these challenging discussions without appearing to abandon their commitment to their free speech principles. They do this by accusing their interlocutor of being unable to commit to civil discourse—breaking the set conditions of the seminar room model—to provide themselves with an acceptable out. Accusing someone of ‘acting in bad faith’, being intellectually dishonest, or bringing up snide remarks (however benign) that someone has made about you in the past are all ways to save face when faced with the possibility of having to meet someone in discussion. The IDW affiliate and YouTube personality Dave Rubin is notorious for this. Following the IDW line, he has made clear he is a “free speech absolutist” (Rubin, 2020, p. 50), and yet he continually refuses to debate fellow YouTube commentator Sam Seder (who is highly critical of Rubin’s work) on the grounds that Seder has lied about him repeatedly—a claim that Seder maintains is completely unsubstantiated. This contradiction is apparently acceptable to Rubin, even as he goes on to claim things such as “I find it very hard to get these people to talk at this point” when addressing the apparent general unwillingness of those politically opposed to debate him (The Rubin Report, 2021). Another high-profile example of avoidance—this time actually shutting down a conversation—was Ben Shapiro’s interview on the BBC with recognised British conservative presenter Andrew Neil. In what was a challenging interview for Shapiro, Neil criticised Shapiro’s pro-life view on abortion, causing Shapiro to become increasingly agitated and ultimately

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abandon the interview mid-way. The underprepared Shapiro accused Neil of being a “liberal” who was conducting the interview in bad faith (BBC News, 2019). Shapiro later realised his mistake and apologised to Neil for mistaking him as being on the political left. These examples show the conditional nature of the IDW’s civil discourse. In both scenarios, we find the IDW member choosing to disengage from discussion rather than committing to defending their claims in the ‘battle of ideas’ they supposedly champion. Thus, it appears that maintaining their ideological positions takes precedence over their commitment to freedom of speech. The loopholes afforded to them by epistemic freedom of speech allow them to continue to feign a fealty to free speech while inverting its justification to avoid or silence their ideological opponents. We can see similar moves being made for financial reasons, as those in the IDW seek to protect their branding not just from intellectual ruin but also from economic ruin. We must remember that the spaces within which the IDW operate are not isolated from the wider demands of a capitalist economy. To ensure that one’s ideas remain popular is therefore also to ensure that they remain profitable. Because of this, the drive to secure one’s brand becomes not just a matter of ideological but also financial survival. This economic motivation can have a deleterious effect on the free speech principles of IDW members, who must ensure that they remain economically viable in the competitive world of online social/political commentary. A great example of this sort of economic management can be seen in the actions of arguably the most widely known IDW affiliate, the psychologist Jordan Peterson. Peterson has become renowned internationally for his controversial views and rampant self-help success, yet he is also renowned among his detractors for another reason: avoiding debates that do not have any real or perceived financial benefit. One of the most striking examples of this is his refusal to debate the Marxian economics professor Richard Wolff. Peterson was invited by students at Boise State University to attend a special event celebrating his work, in which he would debate Wolff. Wolff was interested in the debate because he had heard Peterson making claims that he lacked challenges from his ideological opponents. Peterson allegedly agreed to the debate, but it ultimately never went ahead. Wolff would later reveal that Peterson had pulled out once he realised the debate organisers would not be able to afford his speaking fee (Primo Radical, 2019).

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Peterson would go on to address the incident by stating that he refuses to debate Wolff because he would not debate anyone who identified with being a Marxist, considering it to be tacitly excusing the crimes of self-­ styled Marxist regimes during the twentieth century (Journalist Commentaries, 2018). At this stage, it looks as though Peterson (if we take him at his word) is acting in a similar manner to Rubin and Shapiro—nominally refusing to engage with someone who they deem to be outside the bounds of acceptable civil discourse, yet ultimately running away from a serious challenge to their ideas. However, Peterson’s actions reveal a different motivation, which goes towards corroborating Wolff’s version of events. Following all this, Peterson agreed to participate in a debate with arguably one of the world’s most famous Marxists, Slavoj Žižek. The financial gain from such an event was many times that which could be expected from a contest with Wolff. As Conrad Hamilton notes, “rather than provide a free livestream, as per Žižek’s request, Peterson’s clique elected to charge for it, pocketing all the proceeds for themselves” (Burgis et al., 2020, p. 180). It would appear then that Peterson is happy to participate in a ‘battle of ideas’—even with a Marxist—provided he gets suitably renumerated for it. Žižek, in contrast, donated his speaking fee for the event to charity. The IDW, as represented by figures such as Rubin, Shapiro, or Peterson, displays not a lack of commitment to epistemic freedom of speech but rather a complete commitment. It is through their machinations to avoid or censor discussions that we can see the true flaws in the functionality of epistemic freedom of speech as a free speech justification. What we then gain from all this is that epistemic freedom of speech has some serious problems that must be addressed. Its viability as a suitable justification for freedom of speech is very much called into question once we can view how it operates in real-world conditions. In the next chapter, we continue to analyse and assess the real-world impacts of epistemic freedom of speech, this time looking into its interaction with contemporary discussions around the concept of harm.

References Arendt, H. (2003). Truth and politics. In The portable Hannah Arendt. Penguin Classics. BBC News. (2019, 11 May). Ben Hapiro: US commentator clashes with BBC’s Andrew Neil  - BBC News. Retrieved from BBC News [YouTube]. https:// www.youtube.com/watch?v=6VixqvOcK8E&ab_channel=BBCNews

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Burgis, B., Hamilton, C., McManus, M., & Trejo, M. (2020). Myth and mayhem: A leftist critique of Jordan Peterson. Zero Books. Fish, S. (1994). There’s no such thing as free speech … and it’s a good thing too. Oxford University Press. Harris, S. (2020). Republic of lies. Retrieved from Making Sense [Podcast]. https:// www.samharris.org/podcasts/making-­sense-­episodes/225-­republic-­lies Haworth, A. (1998). Free speech. Routledge. Journalist Commentaries. (2018, November 19). Jordan Peterson presents his book ‘12 rules for life’ at UFV Madrid. Retrieved from Journalist Commentaries [Youtube]. https://www.youtube.com/watch?v=teOAK-­J81aM McIntyre, L. (2018). Post-truth. The MIT Press. Nagle, A. (2017). Kill all normies. Zero Books. Oreskes, N., & Conway, E. M. (2008). Challenging knowledge: How climate science became a victim of the cold war. In R. N. Proctor & L. Schiebinger (Eds.), Agnotology: The making and unmaking of ignorance. Stanford University Press. Primo Radical. (2019, August 25). Richard Wolff explains feud with Jordan Peterson. Retrieved from Primo Radical [Youtube]. https://www.youtube. com/watch?v=pmRN6plLeHU&ab_channel=PrimoRadical Rubin, D. (2020). Don’t burn this book: Thinking for yourself in an age of unreason. Constable. The Rubin Report. (2021, 20 November). The single worst mistake the right made when COVID began | Candace Owens | POLITICS | Rubin Report. Retrieved from The Rubin Report [YouTube]. https://www.youtube.com/ watch?v=u2LqJ2E_Axk&ab_channel=TheRubinReport Weiss, B. (2018, May 8). Meet the renegades of the intellectual dark web. Retrieved from The New  York Times. https://www.nytimes.com/2018/05/08/opinion/intellectual-­dark-­web.html

CHAPTER 4

Free Speech and the Redefinition of Harm

The question of what constitutes harming another person is central to how and why humans seek to regulate the actions of others. John Stuart Mill, in his championing of liberty as the essential component for the development of the self, recognised the role that unrestricted action can play in the harming of others. Because of this, it is critical to establish an understanding of what exactly constitutes harm insofar as it requires the restriction of human action. While debate appears settled in regard to physical actions that constitute harm (physical injury or deprivation of liberty), the question of mental and emotional harm is not so easily decided—especially as it relates to speech. As a result, there has been a resurgence of both academic and wider public interest in what exactly constitutes harm, as calls for greater restriction on speech have become both louder and more numerous. A key question in this debate is whether there is or can be an actionable difference between harmful speech and offensive speech. Integral to this discussion is the nature of subjective versus objective notions of harm and how they can be accurately measured and accounted for. One person’s harmful speech becomes another’s offensive speech; where one sees cause for regulation, the other sees something that (while potentially disagreeable) should remain free. Unlike physical harm, where the extent of an injury can be seen by all, emotional injury can often (but not always) be obscured from the external gaze. The impact of emotional injury from

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speech has attracted much more attention and support in the current era than historical figures such as Mill have offered. Indeed, one of the largest criticisms of Mill’s conception of harm in contemporary debate is that his understanding of harm is too limited and allows too much scope for emotional injury to take place under a banner of mere offensiveness. Understanding these limitations is essential if freedom of speech is truly to be a universal right for all, and as such, any framework for freedom of speech in the contemporary world will need to account for this tension. What this requires is an understanding that there has been a redefinition of harm in contemporary society. The normative shift in standards that has been brought about by increasing levels of social justice and awareness, as well as a contemporary prioritisation of identity on both sides of politics in the ongoing ‘culture wars’, has pushed the scope of what can be considered harmful speech to become much wider than it has been in previous eras. Indeed, much work has been done, especially by those in fields such as critical race theory, to show that traditional understandings of harm and the subsequent justifications for freedom of speech are inadequate in providing an equal, inclusive and harm-free environment for all people. If the arguments of such scholars are to be taken seriously, then the redefinition of harm is necessary for a just society. However, there are also those who oppose such changes, fearing that implementation is occurring without greater consideration for the wider impacts that could follow. The potential for misuse and a revival of the social tyranny that Mill originally feared is a concern that accompanies any increase in the regulation of speech. The inability to distinguish the exact boundaries of harmful speech, the privileging of impacts over intentions, and the presumption of guilt over innocence are all concerns that need to be accounted for if this redefinition of harm is to be truly understood as just. As a starting point, let us begin by delving into how Mill himself dealt with the concept of harm within On Liberty.

Mill and the Harm Principle The question of how Mill defines harm is critical considering the position of what has become known as the harm principle in his overall framework of how actions should be justified within society. Mill’s highly influential argument makes its appearance early on in the introductory first chapter of On Liberty, preceding his epistemic arguments in the book’s second

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chapter. It reads as follows: “The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others” (Mill, 2006, p. 16). What is clear then is that the justification of any exercise of power by society over the individual leans very heavily on how harm is defined within Mill’s reckoning. Harm is defined by Mill (2006, p. 16) as any action that serves to “produce evil to some one else”. On the face of it, this definition is quite broad and could be interpreted to include any number of actions so long as they can be fit into the category of being ‘evil’. It is only through the context of the remainder of the arguments in On Liberty that we begin to grasp what Mill truly means by harm. The case made by modern scholars is that Mill’s idea of harm is constituted singularly of physical harm, with no real consideration for what modern critics would view as emotional harm. This distinction is worth exploring, especially considering Mill’s continuing influence on the current debate regarding freedom of speech. Mill’s primary concern at all points is that any person should be at liberty to develop individually as they see fit. Following this argument from individuality (which he develops comprehensively in On Liberty’s third chapter), Mill believes that it is within our individuality that humans find their value. He argues that by living lives determined by others—even through submitting to indirect forms of coercion, such as by following social trends—people are held back from reaching their true potential, and as a consequence, humanity is also necessarily held back from reaching its true potential: “He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties” (Mill, 2006, p.  67). Mill (2006, p.  68) famously invoked the image of a growing tree to represent humanity as it bucks the constraints of conformity to branch out and reach for the progression of human society through individual development: “Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing”. Mill (2006, p.  65) relates this idea back to his epistemic arguments regarding the valuing of differing or dissenting opinions—“there should be different experiments of living”—making the argument that it is only through the allowing of differing lifestyles that we can discover the ‘truth’ of the best way to live. The result of this is a resounding rejection of the ideas of conformity—specifically, social conformity—arguing it to be an

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obstacle in the development of the best version of human civilisation. Once again, to invoke the tree, humanity must be freely allowed to develop from “the inward forces which make it a living thing”, no matter how the branches may grow out from the trunk. The case being made here is a very strong push for the maximum possible liberty for the individual not only in opinion but also in action. For Mill, it is only through this individual liberty that a person can live their best life and be their best self. Any action taken to constrain this individuality, even as a means to better mould someone into the societal collective’s ideal, is therefore unjust. However, there is an important caveat in Mill’s theory regarding where individual liberty may be constrained by those in society: where an individual’s freedom leads to injury to others. Despite what his overarching argument may suggest, Mill is keenly aware that an absolute freedom of individuals to develop themselves is fundamentally incompatible with the idea that all individuals should be able to pursue this development equally. He is not blind to the potential for abuse by stronger individuals to use their advantage to encroach on the rights of others. Because of this, he advocates for the constraint of the stronger individuals within his argument from individuality by employing the harm principle. While Mill does not explicitly mention harm in this particular setting, we can infer from his earlier discussion on harm in On Liberty coupled with the actions taken by Mill that harm is what we are dealing with. Thus, we can assume Mill is referring to harm here as an “encroaching on the rights of others”, as well as an “injury”. This discussion of rights being set apart from injury does lead me to think that perhaps Mill’s understanding of harm could potentially be more expansive than how scholars have previously interpreted. According to the legal scholar Joel Feinberg, such a tension does exist technically, but for the most part, he argues that Mill’s conception of harm is, in reality, quite limited. Feinberg (1980, p. 70) makes this case by noting Mill’s differentiation between harmfulness and offensiveness, arguing that for Mill, “mere offensiveness, as opposed to harmfulness, can never be sufficient ground to warrant interference with liberty”. This differentiation between harmfulness and offensiveness is key in the modern debate regarding the redefinition of harm—one of the main arguments being that where some people see offensiveness, others see emotional injury in the same capacity as physical injury. The ability to play this potential emotional injury down to just ‘being offended’—therefore allowing for the

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protection of the continuing use of potentially emotionally injurious language—is one of the prime criticisms of Mill’s conception of harm. Feinberg (1980, p. 71) himself defines harm in the tradition of legal scholarship as “the violation of an interest”. This is also quite a broad definition, which Feinberg (1980, p. 71) makes note of, acknowledging that if you then “posit a universal interest in not being offended, it will follow that to suffer offense is to suffer a kind of harm”. However, he questions this conclusion immediately, asking how harmful some ‘harms’ can be under this definition if they do no further harm outside of violating one’s interest in not being offended. Despite all this, Feinberg contends that there is a difference between the state of being offended and the state of being hurt: Offensive behaviour is such in virtue of its capacity to induce in others any of a large miscellany of mental states that have little in common except that they are unpleasant, uncomfortable, or disliked. These states do not necessarily “hurt,” as sorrow and distress do. Rather the relation between them and hurt is analogous to that between physical unpleasantness and pain. (Feinberg, 1980, p. 71)

Developing on this, Feinberg (1980, p. 73) also adds that some offensive actions may have positive intentions: “its motive may not be to taunt so much as to display one’s independence and contempt for custom while boldly affirming, and thus vindicating, one’s rights”. This position echoes an argument made by Mill (2006, p. 65) in his advocacy of individuality against the societal imposition of custom: “Where, not the person’s own character, but the traditions or customs of other people are the rule of conduct, there is wanting one of the principal ingredients of human happiness, and quite the chief ingredient of individual and social progress”. The apparent outcome here is that both Mill and Feinberg accept that there is a difference between offensiveness and injury in regard to understanding the concept of harm. However, this does not mean that the case is settled as to whether aspects of offensiveness could be incorporated under the banner of harm. Feinberg is aware that Mill would look to censor any offensive behaviour that did not have any “redeeming social importance” such as public nudity or other such displays of indecency (Mill, 2006, p. 71). Thus, he admits that Mill’s formulation may still allow for offensiveness to be suppressed despite the absence of harm, as it has been previously understood.

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Feinberg and the Offense Principle From this discussion, we can see that even if offensiveness is not equated with ‘harm’ proper—briefly discounting the notion that certain offensive actions may actually be better characterised as harmful actions—there is still a question of whether regulation should play a role. Feinberg delves into this question, determined to evaluate whether such offensive behaviour should be constrained and under what conditions. His conclusion is to argue for the adoption of an offense principle to work as a supplement to the harm principle, ensuring that offensive actions are only constrained based on the same normative standards by which the harm principle operates. Feinberg (1980, p. 86) is very clear in what he wants from this principle, arguing for a precise formulation “so as not to open the door to wholesale and intuitively unwarranted repression”. The principle should not be able to be hijacked to serve the subjective standards of any individual or collective understanding of what is offensive or inoffensive. Feinberg believes that there are two mediating norms that should help to regulate the offense principle: the standard of universality and the standard of reasonable avoidability. The first clause, regarding universality, Feinberg (1980, p. 88) defines as follows: “let us stipulate that in order for ‘offense’ (repugnance, embarrassment, shame, etc.) to be sufficient to warrant coercion, it should be the reaction that could reasonably be expected from almost any person chosen at random, taking the nation as a whole, and not because the individual selected belongs to some faction, clique, or party”. This is Feinberg’s way of trying to avoid ‘subjective’ misuse of the principle by tying it to a greater standard of normativity. While this definition does potentially open up Feinberg to the same criticism levelled at Mill—that his principle will allow speech that is taunting, insulting, or abusive simply by virtue of the idea that not all people would be offended by such speech—Feinberg acknowledges this and responds accordingly. He contends that such speech should not be allowed under his principle despite not affecting a majority of the population, such as a racist insult directed towards a person of minority status. This is due to Feinberg’s belief that the nature of such speech is more closely associated with harmful speech, as opposed to offensive speech (a belief I will address in greater detail later within this chapter). Furthermore, Feinberg argues

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that any victim of speech that wounds in such a way should be able to seek legal recourse to protect them from such speech acts. 1 Moving on to his second clause, Feinberg (1980, p. 89) explains reasonable avoidability as follows: “No one has a right to protection from the state against offensive experiences if he can easily and effectively avoid those experiences with no unreasonable effort or inconvenience”. This principle helps to set the boundaries of where regulation can occur. Immediately, it rules out the regulation of the potentially offensive actions that occur behind the closed doors of a private dwelling. One can freely be nude, excrete bodily fluids, and engage in adventurous sexual acts as they feel inclined. This principle also protects the censoring of offensive books and films, as you would have to willingly engage in consuming them to be offended. Then, again, the principle would protect the public from items such as a racist billboard appearing in a public place or a homophobic advertisement that appears incidentally during regular television programming (or in the pages of a widely read newspaper). Such things may be unreasonably avoidable, such as a billboard placed over a major highway or an advertisement that appears during a popular television programme. You could make the argument that someone is always making a choice to watch a certain television channel or read a certain newspaper, therefore foregoing the right to protection under the offense principle, and in some contexts, this would hold up. However, this would only be the case if those particular outlets were niche enough to not be unreasonable to avoid or if those outlets made it known that such content was to be a component of their regular reporting or programming. Context is vitally important in understanding whether regulation should occur. For example, we would understand that being nude in public versus being nude in private would warrant a different response depending on such context. Having now gained an understanding of both the harm principle and the offense principle, a greater examination needs to be given to the grey areas in the middle. According to our current framework, the difference between harmful speech and offensive speech points to a difference in whether the weight of the law is or should be required to suppress certain speech acts. Offensive speech is subject to universality and reasonable avoidability, whereas harmful speech is not. Thus, it follows that every 1  Feinberg makes the assumption here that all people have equal means and ability to access legal recourse, which may not always be true.

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attempt must be made to clearly understand and define those terms. It is with these thoughts in mind that we move on to address the criticism that has been levelled at Mill regarding his definition of harm and the subsequent effect that it has had on freedom of speech.

Criticisms of Mill’s Harm Principle The criticism of Mill’s philosophy (and its legacy, especially in American constitutional jurisprudence) regarding what counts as harm and its resulting impact on freedom of speech is gaining prominence as attitudes change towards what we can countenance as acceptable speech in society. The primary concern is that Millian principles of discerning what constitutes actionable speech often do not include or take into account the damaging effects of hate speech. This is speech that involves expressions of “profound disrespect, hatred, and vilification for the members of minority groups” (Waldron, 2014, p. 27) such as “insulting nouns for racist groups, degrading caricatures, threats of violence, and literature portraying Jews and people of colour as animal-like and requiring extermination” (Matsuda, 1993, p. 23). The main argument against Mill’s harm principle, as debated amongst scholars, is predominantly split into two parts: 1. Mill’s conception of harm is too narrow, leading to situations wherein perpetrators of hate speech are protected from legal/social retribution despite the negative impacts of their actions on others. 2. Contesting Mill’s apparent dedication to his epistemological argument and the ‘marketplace of ideas’ over his harm principle and the subsequent diminishing of the experience of victims of hate speech. To begin with the first argument, critical race theorist Mari J.  Matsuda (1993, p. 24) writes that: The negative effects of hate messages are real and immediate for the victims. Victims of vicious hate propaganda experience physiological symptoms and emotional distress ranging from fear in the gut to rapid pulse rate and difficulty breathing, nightmares, post-traumatic stress disorder, hypertension, psychosis and suicide.

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Alongside this, she also contends that: Victims are restricted in their personal freedom. To avoid receiving hate messages, victims have to quit jobs, forgo education, leave their homes, avoid certain public places, curtail their own exercise of speech rights, and otherwise modify their behaviour and demeanour. (Matsuda, 1993, p. 24)

The case that Matsuda is making here is that the effects of hate speech on the psyche of a person can both, first, be very real, lasting and injurious and, second, act as a constraint on the liberty of a person. Both claims point to the conclusion that hate speech should be considered harmful under a conception of harm that includes both ‘injury’ (physical and emotional) and ‘encroachment of rights/liberties’ as its core framework. Because of this, Matsuda (1993, pp. 18–19) argues for “a formal, legal-­ structural response” to a much wider conception of harmful speech than what Mill is traditionally understood to espouse, claiming that “[t]his progress can lead to a just world free of existing conditions of domination”. Matsuda (1993, p. 18) makes her case on the notion that “the structural reality of racism” and other uneven power structures within society create an unequal system in which those who are in the minority end up paying the price for freedom of speech for all: “Tolerance of hate speech is not tolerance borne by a community at large. Rather, it is a psychic tax imposed on those least able to pay”. Charles R. Lawrence III (1993, p. 57) makes a similar case to Matsuda, arguing that there is often a distinction made by those in power between racist (hate) speech and speech otherwise designated as incitement to violence—even when the racist speech is delivered in a direct manner—stating that “much of the argument for protecting racist speech is based on the distinction that many civil libertarians draw between direct, face-to-face racial insults, which they think deserve first amendment protection, and all other fighting words, which they find unprotected by the first amendment”. This distinction, as noted by Lawrence (1993, p. 58), “makes heroes out of bigots” by allowing them to claim the moral high ground as defenders of free speech when they are vilified for their hateful rhetoric. It is a failure to understand the true force of the injury inflicted by racist speech— due to a narrowed scope of what constitutes harm—that leads to a society in which harm is allowed to be done in the name of protecting freedom of

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speech. For Lawrence (1993, p. 72), this turns freedom of speech from an expression of liberty into a means of domination: There can be no meaningful discussion about how to reconcile our commitment to equality and our commitment to free speech until we acknowledge that racist speech inflicts real harm and that this harm is far from trivial. I should state more strongly: To engage in a debate about the first amendment and racist speech without a full understanding of the nature and extent of harm of racist speech risks making the first amendment an instrument of domination rather than a vehicle for liberation.

Lawrence views the labelling of what he considers harmful speech as merely offensive speech to mean that those who would make such arguments do not understand the significant difference between offense and injury. He explains: There is a great difference between the offensiveness of words that you would rather not hear because they are labelled dirty, impolite, or personally demeaning and the injury inflicted by words that remind the world that you are fair game for physical attack, that evoke in you all of the millions of cultural lessons regarding your inferiority that you have so painstakingly repressed, and that imprint upon you a badge of servitude and subservience for all the world to see. (Lawrence III, 1993, p. 74)

Thus, as with Matsuda, Lawrence (1993, p. 74) wants to make clear that “[p]sychic injury is no less an injury than being struck in the face, and it is often more severe”. The failure of figures such as Mill to effectively acknowledge or include this in their conception of harm has led to a legacy wherein hateful speech is treated separately from hateful action—a distinction that both Matsuda and Lawrence dispute—and has allowed for emotional injury to go unchecked by the harm principle in many cases. Furthermore, we see a rising context in which those who seek to use speech to harm others are afforded protection in their right to vilify others, while their victims go unshielded in their endurance of such treatment. This brings us to the second criticism of the Millian approach—that his epistemological framework disregards the real lived experience of the victims of hate speech, bringing it into conflict with his harm principle. We remember that Mill’s epistemic argument is about keeping speech as open and as free as possible, allowing conflicting opinions to enable the emergence and testing of the truth. According to Mill, silencing a person’s

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opinion (whether right or wrong) removes a chance for a possible truth to be uncovered or for the bolstering of a person’s own opinions as a result of the debate. This epistemological position is distinct from the harm principle in that its function is not normative but rather operates on a concern for the discovery and sharing of truth as the primary reason for whether or not harm should be allowed. Mill’s narrowed scope of harm works in his favour here, as it allows him to put forth both his epistemological position and his harm principle without obvious conflict—actions are regulated by harm, speech is regulated by truth. As we have already discussed, however, this distinction is not universally agreed upon. Both Matsuda and Lawrence, for instance, have taken issue with the Millian argument’s dismissal of the harms of hate speech to maximise the value of its epistemic position. The main concern of those who defend Mill is that an expansion of the regulation of speech means that the threat of overreach or misuse becomes a problem. Matsuda (1993, p. 33) acknowledges the strength of this argument: “The strongest argument against the criminalisation of racist speech is that it is content-based. It puts the state in the censorship business, with no means of assuring that the censor’s hand will go lightly over ‘good’ as opposed to ‘bad’ speech”. The ability of a government to outlaw certain types of speech based on its supposed inappropriateness in society can certainly lead to the possibility of being stretched to include speech that is, for example, contrary to government interest. A second argument, also often invoked by defenders of Mill, claims that the best defence against bad speech or hate speech is ‘more speech’ or ‘better speech’. The case here is that suppressing arguments does nothing towards actually defeating them, rather only serving to remove them from public appearance. In contrast, by allowing such arguments to be voiced, the arguments exist in the public space where they are readily able to be debunked and discredited. The issue with these arguments is that they completely ignore the lived experience of the people who are the subject of the speech in question. Matsuda (1993, p. 20) notes that it is no coincidence that in advocating for the legal restriction of hate speech, she has “found the most support coming from people who identify with target groups”, while finding the most resistance amongst those who do not consider themselves a part of those particular identity groups. The problem here, at least according to scholars such as Katherine Gelber and Luke McNamara (2016, p.  337), is that when we do make laws about restricting speech—when we do consider how speech may

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affect a person in terms of harm—they are often based on the viewpoint of the “neutral ‘reasonable person’”. However, such an idealised, counterfactual person without any specific history, race, or culture is not optimally “placed to gauge and articulate the harms done” by hate speech (Gelber & McNamara, 2016, p. 337). Matsuda (1993, p.  47) makes a similar point regarding the unevenness in the law: “The selective consideration of one victim’s story and not another’s results in an unequal application of the law. Unlike the victims of defamation and other torts, the victims of racist speech are not representative of the population at large”. Gelber and McNamara’s (2016, p. 337) solution to this problem is that because not all people respond to the same speech stimuli in the same way, it should make sense to have hate speech law “assessed from the point of view of a member of the targeted group”, rather than leaving it to a potentially false sense of philosophical neutrality. This does open up some pressing questions about the subjective nature of victim experience and its potential impacts on freedom of speech, so it is important that we explore these ideas in a comprehensive manner. Gelber and McNamara, for example, advocate quite strongly for the restriction of speech based on its capability to harm, rather than the actual harms caused or the intentions behind the speech itself. Lawrence is very clear in asserting that a robust freedom of speech has value and should not be dismissed lightly. Like Gelber and McNamara, he believes that the choice to embrace this value can only be accessed “after full consideration of the inequalities that might accompany that choice” (Lawrence III, 1993, p. 63). He therefore accepts that the ignorance of inequities and assumptions of equal standing under freedom of speech must be both acknowledged and dismantled. Matsuda further develops this idea, reiterating the point that it is not society as a whole who must pay the cost for freedom of speech; it is instead minorities subject to forms of hate speech who must alone bear the pain of what free speech can bring: In making typical legal concessions to the first amendment, we burden a range of victims. In the case of flag burning, we force flag lovers of all races and class positions to tolerate flag desecration as part of the price of freedom. In contrast, when the victims of racist speech are left to assuage their own wounds, we burden a limited class: the traditional victims of discrimination. (Matsuda, 1993, p. 47)

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Following on from this, Matsuda speaks out against what she views as a blind tolerance of hate speech by society to preserve what is only a semblance of equal and inclusive freedom of speech: Tolerance of hate speech thus creates superregressivity – those least able to pay are the only ones taxed for this tolerance. The principle of equality is violated by such allocation. The most progressive principle of rectification or reparation – the obligation to repair the effects of historical wrongs – is even more grossly violated. (Matsuda, 1993, p. 48)

Ultimately, the failure to hear the victim’s story results in a denial of the freedom to participate fully in society and, consequently, a failure to effectively secure freedom of speech for all. What remains to be addressed is now an answer to the question of whether a freedom of speech justification revolving around a locus of identity can fulfil the expectations required in our contemporary society.

Modern Censorship and Call-Out Culture While it can be argued that ‘identity’ has been a driving force in social debates since the civil rights movements of the sixties, the demand for inclusivity and the acceptance of human diversity have reached new levels of awareness and representation in the twenty-first century. As noted by Todd Gitlin (2005, p. 401), people are “obsessed today with their racial, ethnic, religious, and sexual identities”. It is obvious to figures such as Gitlin that the centrality of identity (and the seriousness with which we must take it) are ideas that have become quite ingrained within the cultural mainstream of contemporary society. Some, such as Richard King, see this prominence of identity as a reaction stemming from a less tolerant time, where racial and gender politics-based activists struggled to achieve what they saw as being true equality: “Democracy may be able to deliver on universal suffrage and property rights, but what it cannot do, these radicals insisted, is bring about genuine equality” (King, 2016, p. 56). Many also believe that the failure of the political left to influence economic policy and reform in the face of the rising neoliberalism of former US president Ronald Reagan and British prime minister Margaret Thatcher left those on the left to refocus their efforts “away from issues of economics and class, and towards the politics of ethnicity and gender” (King, 2016, p.  57). Gitlin (2005, p.  401), for one, broadly concurs with this

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analysis, noting in his examination the more specific turn in left-leaning circles towards what can be called the postmodern politicisation of culture and representation, as a new way in which to gain back a sense of control in the wake of their economic disempowerment. This newfound embrace of postmodernist rhetoric filtered through the academy, from philosophy, through to literary theory and the various forms of cultural studies. The students within these disciplines would then go on to bring these ideas from the fringes of the academic left into a more mainstream standing as time passed. The result, for figures such as scholar of counterculture Angela Nagle, is a modern version of the left that hinges entirely on the concept of identity. Nagle (2017, p. 69) describes this new culture of the left as follows: The main preoccupation of this new culture … was gender fluidity and providing a safe space to explore other concerns like mental ill-health, physical disability, race, cultural identity and ‘intersectionality’ – the now standard academic term for recognition of multiple varieties of intersecting marginalizations and oppressions.

This oppression based upon factors of identity is still as much of a concern now as it was in the 1960s. Therefore, it must be asked: what is the problem with advocating for a politics that protects people from oppression based on factors that in many cases are beyond their control? Critics of this movement—often referred to by such critics as identity politics—argue that in endeavouring to protect the rights of those oppressed by current political and cultural institutions, identitarians most often attempt to achieve this by arguing for a reduction in or removal of the rights and freedoms of the ‘majority’. Thus, these critics complain that the end goal of identity politics is not a truly equal society but rather a reversal in power from the oppressor to the oppressed. This trajectory is seemingly then a movement away from a politics of common humanity. Instead, identity politics enshrines for its critics a movement towards a political model in which “difference became the focus of resistance, rather than something to overcome” (King, 2016, p. 55). Gitlin views this model as a version of radical separatism that leaves behind any sense of common humanity in its practice: Having struggled to overcome silences, they developed their own methods of silencing. They were uncomfortable with self-contradiction and individ-

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ual difference. They closed ranks and protected turf, for their struggle was never-ending. Identities, however strenuously declared, remained embattled, ever in need of shoring up. Separatism was no longer a stage on the way to some sort of intellectual and political reconciliation; it was an institution and an intellectual given. Difference was vital, commonality moribund. Demands for race and gender blindness and inclusion tipped toward demands for all-consuming race and gender consciousness. Difference was practiced, commonality barely even thought. (Gitlin, 2005, p. 402)

To maintain this separatism, action needs to be taken against anyone who could be interpreted as a threat. This includes the embracing of censorship, leading to what Nagle (2017, p.  68) describes as an alienation of those who fit the traditional description of oppressor: “They tried to move the culture in the opposite direction by restricting speech on the right but expanding the Overton window on the left when it came to issues of race and gender, making increasingly anti-male, anti-white, anti-straight, anti-­ cis rhetoric normal on the cultural left”. According to Nagle (2017, pp.  69–70), the left’s whole-hearted embrace of identity had then “reached its most absurd apotheosis with a politics based on the minutia and gradations of rapidly proliferating identities, and the emotional injuries of systemic cultural prejudices”. This form of the new cultural left has become, for the most part, completely associated with the advocacy of identity at any cost and at the price of ignoring other salient social and political issues. Such calls for diversity have not done anything to help reconcile society towards some common sense of justice or purpose, as Gitlin (2005, p.  402) notes: “[t]he demand for respect for difference – for what came to be called multiculturalism – often swerved into the creation of parallel monocultures”. Mark Fisher (Fisher, 2013) comments further on this idea, noting that instead of “seeking a world in which everyone achieves freedom from identitarian classification”, we are left in a situation where those who support such separatism seek “to corral people back into identity camps, where they are forever defined in terms set by the dominant power, crippled by self-consciousness and isolated by a logic of solipsism which insists that we cannot understand one another unless we belong to the same identity group”. Following all this, it would appear that the advocacy of identity has grown beyond being just a political factor, taking on a new ethical signification in which political necessity is turned into ‘virtue’. Nagle (2017, p.  74) writes about how even those typically in positions of privilege

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became eager to extoll the virtues of identity, even at their own cost: “Self-­ flagellation has also become a core characteristic of the new identity politics, especially among white, male, heterosexual, cis or able-bodied members of the subcultures, who were happy to ‘check their privilege’”. The viciousness with which those within the left were attacked by their own supposed allies for not being virtuous enough mirrored their worst critics on the right. The fear of reprisal for speaking out against this new left began to become prominent amongst those who had belonged to former iterations of the left side of politics, those more concerned with economics than identity, equality than difference, and universalism rather than pluralities. The use of public shaming has become rife, with Jon Ronson (2016, p. 268) describing our time as increasingly “a more conformist, conservative age” wherein “[w]e are defining the boundaries of normality by tearing apart the people outside of it”. What is at issue here, critics maintain, is the apparent appropriation of a real problem (the struggle of minorities against structural oppression) by those who would seek to use the situation to signal their own virtue. Fisher calls this phenomenon the Vampire Castle—he explains its motivation as follows: “It is driven by a priest’s desire to excommunicate and condemn, an academic-pedant’s desire to be the first to be seen to spot a mistake, and a hipster’s desire to be one of the in-crowd” (Fisher, 2013). Nagle notes how after publishing his article ‘Exiting the Vampire Castle’, Fisher subsequently became a victim of the very same phenomenon he criticised: The deluge of personal and vindictive mass abuse experienced by Fisher for years afterwards, involving baseless accusations of misogyny, racism, transphobia, etc., became typical for anyone who dared to touch on any of the Tumblr left’s key sensibilities, perhaps especially from a left perspective. The strangest feature of this online ‘call-out culture’ was the mixture of performative vulnerability, self-righteous wokeness and bullying. (Nagle, 2017, pp. 75–76)

This modern concoction of over-the-top abuse and mass shaming we see in contemporary ‘call-out’ culture (as it has become known) is the primary stimulus in creating what Nagle has dubbed the economy of virtue. Nagle (2017, p. 76) defines the term as follows: “the key driving force behind it is about creating scarcity in an environment in which virtue is the currency that can make or break the career or social success of an online user in this milieu, the counterforce of which was the anonymous underworld from

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which the right-wing trolling culture emerged”. She argues how this economy gives rise to an attitude of “simultaneous victimhood and callousness”, as those who are a part of this new cultural left attempt to outdo each other to retain and flag the most virtue (Nagle, 2017, p. 76). Nagle sees social networking sites such as Twitter playing a key role in the rise of call-out culture, noting how the platform is designed to be a space where users compete for followers, thus providing a visible space where one can track their place in the economy of virtue. She writes that “lagging careers can be instantly boosted through the correct virtue signalling” in ways that mainstream media cannot replicate (Nagle, 2017, pp. 76–77). She also notes how this virtue signalling is often done at the expense of others, creating the call-out culture we see today: At first, self-righteously or snarkily denouncing others for racism, sexism or homophobia was the most instantaneous and certain way to achieve social media fame. Something about public social media platforms, it turns out, was conducive to the vanity of morally righteous politics and the irresistible draw of the culture wars. But soon the secret was out and everyone was doing it. The value of the currency of virtue that those who had made their social media cultural capital on was in danger of being suddenly devalued. As a result, I believe, a culture of purging had to take place, largely targeting those in competition for this precious currency. Thus, the attacks increasingly focused on other liberals and leftists often with seemingly pristine progressive credentials, instead of those who engaged in any actual racism, sexism or homophobia. (Nagle, 2017, p. 77)

This Vampire Castle or ‘political correctness’, as conservative opponents call it, is clearly detrimental to any sort of social harmony when expressed or acted out in such a manner. However, we must also recall our lessons from earlier in the chapter regarding the very real wounding impact that words can have. Finding a way to delineate the boundaries of acceptable speech in a way that remains both universally inclusive and just is critical to avoid unnecessary censorship or, worse, tyranny. This task, as we have just touched on, is one that has been made increasingly difficult by the ubiquitous presence of the internet and social media in our daily lives. It is worth taking a closer look at how the debate around harm has been affected by these progressions in social technology.

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Harm and the Internet The problem posed by the internet to freedom of speech (in relation to the principles of harm and offensiveness) can be split into two main concerns. These two concerns are described by Timothy Garton Ash (2016, p. 16) as how the internet both “telescopes space” and “concertinas time”. The telescoping of space refers to the unprecedented nature of the scale with which global communication has reached. The ability to disseminate information (no matter what the content) is now seemingly unlimited. An event that occurs on one side of the world can now be known instantly on the other side thanks to the internet. Garton Ash (2016, p. 1) describes this situation as “a virtual cosmopolis”, a global city in which we are all neighbours living in the closest of proximities. The concertinaing of time refers to the capacity with which we are now able to store and access information thanks to the internet. The amount of information that can be recorded and stored online is seemingly infinite. This, coupled with the fact that anything posted or published on the internet can be retrieved instantaneously, leaves us in a situation where any event captured by the internet can be immediately recalled and restored in perfect detail—presumably for all time. This can have dire consequences for anyone seeking to retract, or otherwise move on from, past speech or actions, even those they may genuinely regret and repent of. The combination of these two factors has led to a situation wherein every single person who has access to the internet can become a part of the global discussion. This discussion—primarily referring to the status and trajectory of modern culture and society—was previously reserved for the former keepers of informational power, such as mainstream media. However, the advent of the internet and the rise of online chat forums (eventually leading to social media) saw the eventual replacement of mainstream sources of information with independent content creators representing a much wider range of ethical and political stances. For Nagle, the election of Donald Trump as President of the United States serves as a definitive signpost of this shift in power: As old media dies, gatekeepers of cultural sensibilities and etiquette have been overthrown, notions of popular taste maintained by a small creative class are now perpetually outpaced by viral online content from obscure sources, and culture industry consumers have been replaced by constantly online, instant content producers. The year 2016 may be remembered as the year the media mainstream’s hold over formal politics died. (Nagle, 2017, p. 3)

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As many involved in internet culture became fed up with what they saw as a corrupt mainstream media, “a new kind of anti-establishment sensibility” began to emerge (Nagle, 2017, p. 2). She notes how “a spirit of deep nihilistic cynicism and reactive irony bubbled up to the surface of mainstream Internet-culture and an absurd in-jokey forum humour became dominant” (Nagle, 2017, p. 2). The speech that existed in these online forums was often both extreme and unlimited—a factor often exacerbated by the anonymous nature of the internet. The ability to hide one’s identity gave a licence to speak freely without the fear of any ‘real-world’ repercussions. It was only after the deanonymization that occurred with social media that repercussions for free speech started to emerge: While taboo and anti-moral ideologies festered in the dark corners of the anonymous Internet, the de-anonymised social media platforms, where most young people now develop their political ideas for the first time, became a panopticon, in which many lived in fear of observation from the eagle eye of an offended organiser of public shaming. At the height of its power, the dreaded call-out, no matter how minor the transgression or how well-intentioned the transgressor, could ruin your reputation, your job or your life. (Nagle, 2017, p. 2)

Thus, we have the recipe that allowed Fisher’s Vampire Castle to take shape: • The ability for huge masses of people to view and discuss information. • The permanence or ‘timelessness’ of internet-based activity (which has grown to encompass most activity). • The mainstreaming of more extreme and fringe viewpoints (due to the democratising nature of the internet) and their conflict with each other. • Deanonymisation. The result of this, as briefly mentioned earlier, is the rise of shaming and call-out culture. Jon Ronson (2016, p. 9) calls it the “great renaissance of public shaming”, commenting: After a lull of 180 years (public punishments were phased out in 1837 in the United Kingdom and 1839 in the United States) it was back in a big way. When we deployed shame, we were using an immensely powerful tool. It was coercive, borderless, and increasing in speed and influence.

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The effects of online shaming went beyond simply making someone realise their ‘errors’; it became about destroying them. This meant not only trying to remove the alleged offender from any sort of online space but also trying to remove them from offline spaces. This requires not only pressuring the offender themselves but also those who associate with them (including their employer). The effect is to try and make the person being shamed seem “radioactive”—the idea that by associating with a targeted person you too could also become a target (Ronson, 2016, p. 37). This strategy can be quite successful in regard to preventing the target from holding down any sort of consistent employment, as the corporate world feels the pressure of rising activism on its brand management. This situation has been exacerbated by the movement from brands being simple mascots for corporations to the personification of brand identities with “corporate consciousness” (Klein, 2010, p. 7). This way of thinking means that businesses are far less inclined to tolerate anything that will potentially negatively alter the perception of their brand. This development has occurred due to business branding taking on a sense of personhood in the modern world, what Naomi Klein (2010, p. 21) calls a “corporate transcendence” beyond the simple advertising of products toward a fully realised “corporate personality” (Klein, 2010, p.  6). As corporations become more anthropomorphised, they become open to reputational damage in the same way suffered by human beings. Dario Milo (2008, p. 28) argues that this effect is amplified when courts choose to interpret reputation as a form of ‘property’: “Viewing reputation as property certainly explains some incongruous features of the common law of defamation. The classic aspect of defamation law that regards reputation as a form of property is the rule that corporations can sue for defamation”. The result of this is a culture wherein corporations must maintain their image to avoid any scandals that may infringe upon their bottom line. If a corporation becomes known for active participation or being complacent in the face of ‘political incorrectness’, the negative brand association may cause real or anticipated damage to sales across a consumer demographic with a widening social conscience. Because of this, there is a distinct risk of corporations being too easily swayed by even the slightest inkling of scandal, causing them to potentially act impulsively, harassing or firing targeted individuals into silence to secure their brand as being ‘politically correct’. This is sometimes done in ways that deny the individual(s) being let go the opportunity to provide context, defend themselves, or

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(depending on personal/financial circumstance) pursue any recourse that would allow them to maintain their position of employment. Allowing this to continue could potentially cause the culture of employment to become closed off, homogenous and fundamentally unjust. The pressure to adopt a single ideology and its requisite set of approved opinions would become a standard part of workplace relations. Targets of online shaming often have an exceedingly difficult time both maintaining or seeking out employment. Furthermore, the permanence of the internet often means that this problem persists far beyond the date of their initial infraction. Jon Ronson details a number of cases that describe those affected by this phenomenon within his book So You’ve Been Publicly Shamed, observing that it can often be over a year before any sort of recovery can begin to take place. One of the more important questions to come out of all this then is whether such individuals deserve what shaming delivers them. To put it colloquially, does the punishment fit the crime? The answer to this question becomes complex when one considers the effects of the economics of virtue, which are constantly at play in these mass-shaming events. The ever-tightening personal ethical standards brought to bear on these situations can result in cases where guilt is determined without even considering the intentions of the person who has allegedly committed the crime. Questions as to whether the accused has been misinterpreted (or simply misspoke) seem to fall by the wayside. Attempts by the impugned to retract or make apologies, moreover, sometimes only exacerbate the outcry against and condemnation of them. In regard to the limiting of acceptable speech—the breach of which holds such dire consequences—it is clear that there needs to be a distinction between whether it is the intention or impact of speech that should determine which speech is limited and in what contexts. The main problem that any restriction of speech based on its subjective impact on others runs into is that it would seemingly violate the bounds of acceptable accountability—namely, that it has the potential to shift the burden of proof away from the accuser and onto the accused to prove that their intention was not to cause harm through their speech. As Hannah Arendt explains, this is an ill-advised course of action: The great maxim of all civilized legal systems, that the burden of proof must always rest on the accuser, sprang from the insight that only guilt can be irrefutably proved. Innocence, on the contrary, to the extent that it is more

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than ‘not guilty’, cannot be proved but must be accepted on faith, whereby the trouble is that this faith cannot be supported by the given word, which can be a lie. (Arendt, 2006, p. 77)

What Arendt claims here is not that people cannot be proven innocent in a court of law, but rather that the intention behind any action can never truly be proven beyond what the external evidence available to us suggests (including testimony). Therefore, if only the subjective impact of speech on others is considered when drawing the limits of free speech, the genuine testimony of the accused—that they never intended to cause harm— could be potentially ‘disproven’ through other available evidence due to a lack of objective access to the mental world of the accused. These courses of action for limiting speech also run the risk of being flipped as soon as power shifts from one party to another. Today’s accusers may, with a change of government or regime, become tomorrow’s accused, and so on. Whatever measures are used to limit speech by one group creates a precedent that can be used by all others. What is required then is a way to judge acts of expression in a way that all people would find just. This is the argument that I make later in this book. The modern redefinition of harm has led to a situation wherein traditional interpretations of the harm principle have become outdated in relation to freedom of speech. The failure of the harm principle to grant universal protection to all people has resulted in a call for a new understanding of the principle if it is to continue its legacy of being understood as a beneficial force in society. The narrow definition of harm presented by Mill is no longer satisfactory. Such a definition fails to consider the real impact that hate speech can have on its victims while also working to solidify the institutional powers that allow such harms to go unaddressed. That all being said, the advent of the internet and the subsequent ‘democratisation of voices’ has seen a backlash against institutionalised power structures, but in a way that has in some ways gone too far—creating an economics of virtue. Under this system, favour is gained and lost through the collective public judgement of adherence to the most stringent standards of ethical purity. The repercussions of falling foul of such judgement can potentially result in life-altering consequences. As we move into the next chapter, we will take a closer look at some of these ideas as we look to address in greater detail free speech’s interaction with the internet and related phenomena.

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References Arendt, H. (2006). On revolution. Penguin Classics. Feinberg, J. (1980). ““Harmless immoralities”” and offensive nuisances. In Rights, justice, and the bounds of liberty. Princeton University Press. Fisher, M. (2013, November 24). Exiting the Vampire Castle. Retrieved from Open Democracy UK. https://www.opendemocracy.net/en/opendemocracyuk/exiting-­vampire-­castle/ Garton Ash, T. (2016). Free speech: Ten principles for a connected world. Atlantic Books. Gelber, K., & McNamara, L. (2016). Evidencing the harms of hate speech. Social Identities, 22(3), 324–341. Gitlin, T. (2005). The cant of identity. In D. Patai & W. H. Corral (Eds.), Theory’s empire: An anthology of dissent. Columbia University Press. King, R. (2016). On offence. Scribe. Klein, N. (2010). No logo. Fourth Estate. Lawrence, C. R., III. (1993). If he hollers let him go: Regulating racist speech on campus. In M. J. Matsuda, C. R. Lawrence III, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound. Westview Press. Matsuda, M. J. (1993). Public response to racist speech: Considering the victim’s story. In M. J. Matsuda, C. R. Lawrence III, R. Delgado, & K. W. Crenshaw (Eds.), Words that wound. Westview Press. Mill, J. S. (2006). On liberty and the subjection of women. Penguin Classics. Milo, D. (2008). Defamation and freedom of speech. Oxford University Press. Nagle, A. (2017). Kill all normies. Zero Books. Ronson, J. (2016). So you’ve been publicly shamed. Picador. Waldron, J. (2014). The harm in hate speech. Harvard University Press.

CHAPTER 5

Free Speech Goes Online

The introduction of the modern internet in 1989 was the introduction of a tool enabling communication on a scale never before seen in history. Although books have long had the ability to both disseminate and store information, the internet allows audiences not only to receive and store information at much greater capacity but also to respond (both to the source of the information as well as to other members of the audience). This advancement in communications technology could arguably be the biggest challenge for the established framework of free speech in the modern world. The sheer amount of speech, now able to traverse the entire globe and back in an instant, brings about new challenges as cultures and ideologies collide in ways that previously would not have been possible. The even more recent development of social media has exacerbated this problem, as more and more of our lives are lived out in these online spaces. Andrew Marantz (2019, p. 3) remarks that after only existing for less than two decades, “social networks had become the most powerful information-­ spreading instruments in world history”. In its infancy, social media was believed to be a force solely for good—a tool that enabled those without a way to speak out to finally be heard. Because of this, many initially viewed social media as a liberating force in regard to freedom of speech. However, the unrivalled communicative power of the internet coupled with the rapidly growing tech industry refusing “to acknowledge the expanding scope of their influence and responsibility” led to what Marantz (2019, pp. 3–4)

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describes as a shift in the public vocabulary—where speech immediately began to become “both more liberated and more unhinged”. Marantz (2019, p. 71) notes that within the United States, “the disruptive effects of social media coincided with a period of stark economic inequality, cultural unrest, and rapid demographic change”. The shift in the conditions of speech, coupled with an enhanced ability to connect with ‘like-minded’ groups and individuals, saw a momentum build within—and an eventual attempt to normalise—what were considered the more fringe political elements of both the far-left and far-right. Angela Nagle (2017, p. 2) notes how during the early 2000s, message-board sites (the precursors to social media) such as 4chan and Tumblr played host to “online culture wars that have raged on below the line and below the radar of mainstream media throughout the period over feminism, sexuality, gender identity, racism, free speech and political correctness”. These online culture wars continue to rage, with the internet allowing even those with the most extreme, hateful views a pathway to viral success. Social media allowed for extreme far-right commentators not only to gain a foothold in the world of news and political commentary but also to make a living from it. As social media emerged as the dominant force in global communication, its role continued to expand. It became not just a place for ‘friends’ to share messages and pictures but also a source of news and factual information. For example, Marantz (2019, p.  159) writes about how journalists love Twitter, utilising it to attempt to overcome the traditional journalistic weakness that “[n]o reporter can be everywhere, talking to everyone”. However, this creates a problem—one Marantz explains as follows: Twitter was never meant to be the gold standard. People talk about Twitter as if it were a real-time heat map of the national conversation; yet the platform was not an objective reflection of the thoughts and opinions of all Americans. Or even of the less than 20 percent of Americans who had active Twitter accounts. What Twitter actually reflected was engagement: which memes were, at any given moment, generating the most activating emotion. This meant that the platform overrepresented controversy, which wasn’t a novel problem. (Marantz, 2019, p. 160)

The reason this overrepresentation of controversy is not a novel problem is because of how tech companies have revolutionised how they monetise their respective platforms—through the commodification of personal user

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data. To mine this data, companies need to ensure maximum engagement with their platform to build an ever-more complete picture of each user. To achieve this, social networks are “giving users not what they needed but whatever they were likely to want, based on their stated and unstated preferences” (Marantz, 2019, p.  126). The strategy employed to keep users engaged is to instigate within them any emotion that causes a state of high arousal. Marantz (2019, p.  79) explains: “High-arousal emotions are called activating emotions. These are emotions that lead to measurable behaviours  – in this case, clicking or liking or sharing a link  – as opposed to deactivating emotions, which are more likely to induce torpor or paralysis”. By continually bombarding users with content that causes these activating emotions, social media companies are not only surveilling the data of users but also directly manipulating the users for their own ends. Roger McNamee (2019, p. 5) notes how Facebook founder Mark Zuckerberg embraced this tactic to grow Facebook into the giant it is today: “He embraced invasive surveillance, careless sharing of private data, and behaviour modification in pursuit of unprecedented scale and influence. Surveillance, the sharing of user data, and behavioural modification are the foundation of Facebook’s success. Users are fuel for Facebook’s growth and, in some cases, the victims of it”. The system in which this type of operation exists has been labelled surveillance capitalism by social psychologist Shoshana Zuboff. Zuboff (2019, p. 7) argues that under this system of surveillance capitalism, our privacy (along with other freedoms) is being taken from us to further the agenda of those who wish to profit from selling our behavioural data to third parties. One of the key issues created by this type of operation is the effect it has on freedom of speech. The companies that engage in this type of operation are some of the largest companies in the world, resulting in unprecedented control over both the flow and presentation of information to the masses. The growing state of these corporations becoming what Marantz (2019, p. 212) labels “universal platform(s) for human discourse”, requires us to question whether there needs to be some sort of regulatory intervention for these companies to preserve freedom of speech. Here, as elsewhere, monopoly power amounts to a quasi-legislative force, so that the formally ‘private’ decisions of these companies shape public life. The pursuit of profits through the mechanisms of activating emotions and behaviour modification leads to many issues that could impact

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freedom of speech. These include the creation of a multifaceted internet in which each person’s ‘internet’ looks different from the next (filter bubbles), as well as the eventual elimination of privacy and the removal of an individual’s control over their own reputation. I will explore these ideas in the following pages.

Social Media, Surveillance and Behaviour Modification The advent of the internet was initially hailed as the dawn of a new era for freedom of speech. The invention of what would come to be known as social media in the mid-2000s only served to heighten the belief in “what cyberutopians of the early Internet had long prophesied” (Nagle, 2017, p.  10). This new form of media allowed for the bypassing of the outmoded media ‘gatekeepers’ who had traditionally decided what was newsworthy and what was to be ignored. The political left celebrated the rise of social media and “a new leaderless form of digital revolution” that brought about political events and organisations such as the Arab Spring, the Occupy movement, Anonymous and Wikileaks (Nagle, 2017, p.  10). However, this was not to last. Consider the relatively recent Egyptian revolution, which became a “revolution that led to something worse – the rule of the Muslim Brotherhood”, who themselves were only displaced by the return of military dictatorship to Egypt (Nagle, 2017, p.  11). Additionally, recall the Occupy movement, which ended up collapsing due to a lack of leadership and overarching aims. It is important to note here that a similar, leaderless digital revolution was simultaneously taking place on the political right, but we will get to that later. The ultimate failure of these progressive movements, combined with the increasing level of transgressive speech across social media platforms, has led to a shift in understanding about the role of social media in relation to freedom of speech. While the platforms themselves consistently claim to be pro-freedom of speech, the version of freedom of speech that they endorse is not one that sits well with the traditional (more progressive) ideologies with which freedom of speech is often associated. Marantz (2019, p. 291) discusses this idea in relation to how Facebook regulates speech on its platform, noting that Facebook is willing to allow many instances of what could be considered harmful speech and misinformation while heavily regulating other material such as pornography and ISIS

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propaganda. Searching through the platform himself, he notes, “[t]he search results didn’t include much nudity or profanity, both of which Facebook’s moderators were quick to remove; but I did find plenty of invented crime statistics, misleadingly doctored photographs, and all manner of covert and overt bigotry” (Marantz, 2019, p. 129). The reason for this approach to freedom of speech is that these tech corporations are more interested in building engagement on their platforms (and subsequently, profits) than in implementing any sort of speech regulations that would potentially see a decrease in user activity. The implications of this type of operation are far reaching, as observed by David Kaye (2019, p.  15): “Online platforms have become wide open spaces for public and private debate; hatred is spreading through them with the help of manufactured amplification; incitement to violence and discrimination seem to flow through their veins; and they have become highly successful and profitable zones for disinformation, election interference, and propaganda”. The companies responsible for operating in such a fashion argue that it is outside of their control, but critics such as Marantz (2019, p. 80) dispute this claim, instead contending that the larger goal of these companies, such as Facebook, “was not to spread high-quality content; it was to entice more users into spending more time on Facebook”. This mode of operation has also become more ubiquitous, as a small group of the most profitable and influential internet companies have taken over the initially open and democratic internet with an immense network of privately owned structures. There is an increasing danger that this current trajectory is one that will see the influence of the largest internet corporations eventually completely envelop our lives. For Zuboff, much of these effects can be traced back to the rise of what she labels surveillance capitalism. This system oversees the emergence of an internet that is no longer maintained for the benefit of the people but primarily for the benefit of those who can profit from its usage—with any benefit to individuals being an externality of the process or a necessary lure. Zuboff defines surveillance capitalism as follows: Surveillance capitalism unilaterally claims human experience as free raw material for translation into behavioural data. Although some of these data are applied to product or service improvement, the rest are declared as proprietary behavioural surplus, fed into advanced manufacturing processes known as “machine intelligence,” and fabricated into prediction products that anticipate what you will do now, soon, and later. Finally, these ­prediction

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products are traded in a new kind of marketplace for behavioural predictions that I call behavioural futures markets. (Zuboff, 2019, p. 8)

The operation that Zuboff is detailing here is one in which by signing up to use the ubiquitous and all-pervasive technologies provided by the major internet companies, we must also allow them unbridled access to our personal data. This data includes everything that encompasses us—not just our descriptive details such as name and age but also our behavioural surplus. This behavioural surplus includes any aspect of our being or behaviour, reflected in what we have clicked on, looked at, watched or read online; all of which can be used to predict our future behaviour, including but not limited to our voices, personalities and emotions; so, our interests, hobbies, our sexuality, relationships, friendship networks, and more. This behavioural surplus is then fed into targeted advertising algorithms or sold off to third-party companies for their own purposes. As these companies reach for more “predictive sources of behavioural surplus”, the apparent dissolution of our privacy is only the beginning of the concerns (Zuboff, 2019, p. 8). The greatest point of worry for Zuboff is the shift towards the totalisation of predictive capabilities through behaviour modification: Eventually, surveillance capitalists discovered that the most-predictive behavioural data comes from intervening in the state of play in order to nudge, coax, tune, and herd behaviour toward profitable outcomes. Competitive pressures produced this shift, in which automated machine processes not only know our behaviour but also shape our behaviour at scale. With this reorientation from knowledge to power, it is no longer enough to automate information flows about us; the goal now is to automate us. (Zuboff, 2019, p. 8)

Zuboff (2019, p. 8) labels this “new species of power” instrumentarianism, a new “phase of surveillance capitalism’s evolution, [where] the means of production are subordinated to an increasingly complex and comprehensive ‘means of behavioural modification’”. Instrumentarian power, then, is therefore a power that “knows and shapes human behaviour toward others’ ends” (Zuboff, 2019, p. 8). For Zuboff (2019, p.  9), the development of surveillance capitalism means the death of the initial digital dream and the removal of the illusion that “the networked form has some kind of indigenous moral content,

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that being ‘connected’ is somehow intrinsically pro-social, innately inclusive, or naturally tending toward the democratization of knowledge”. Rather, it is the acceptance that “[d]igital connection is now a means to others’ commercial ends” (Zuboff, 2019, p. 9). The surveillance capitalist model has now expanded beyond the confines of large internet companies and permeates most internet-based businesses—including eventually expanding offline. Zuboff (2019, p.  10) summarises this evolution with the phrase “we now pay for our own domination”. Understanding surveillance capitalism means recognising that its “products and services are not the objects of a value exchange. They do not establish producer-consumer reciprocities” (Zuboff, 2019, p.  10). Instead, the products and services of the surveillance capitalist are the “hooks that lure users into their extractive operations in which our personal experiences are scraped and packaged as means to others’ ends” (Zuboff, 2019, p. 10). Thus, under Zuboff’s model, to label us as ‘customers’ of surveillance capitalism is incorrect, yet she also contends that it is incorrect to simply label us as the ‘product’ (as per the common saying ‘if the product is free, then you are the product’). Her more complex reading of the situation is as follows: We are the sources of surveillance capitalism’s crucial surplus: the objects of a technologically advanced and increasingly inescapable raw-material-­ extraction operation. Surveillance capitalism’s customers are the enterprises that trade in its markets for future behaviour. (Zuboff, 2019, p. 10)

Zuboff (2019, p. 11) likens the situation to a ‘Faustian’ bargain, wherein “it is nearly impossible to tear ourselves away, despite knowing the fact that what we give in return will destroy life as we have known it”. The depth with which everything relies on the internet, from social participation to commerce, has led us down a path whereby all activity is now infected with a surveillance capitalism that we cannot realistically deny while continuing to function effectively in mainstream society: Our dependency is at the heart of the commercial surveillance project, in which our felt needs for effective life vie against the inclination to resist its bold incursions. This conflict produces a psychic numbing that inures us to the realities of being tracked, parsed, mined, and modified. It disposes us to rationalize the situations in resigned cynicism, create excuses that operate like defense mechanisms (“I have nothing to hide”), or find other ways to

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stick our heads in the sand, choosing ignorance out of frustration and helplessness. In this way, surveillance capitalism imposes a fundamentally illegitimate choice that twenty-first century individuals should not have to make, and its normalization leaves us singing in our chains. (Zuboff, 2019, p. 11)

The operations of surveillance capitalism lead to “unprecedented asymmetries in knowledge and power” (Zuboff, 2019, p.  11). Surveillance capitalists increasingly know more and more about us, while their operations become increasingly shrouded from our view and understanding. Thus, they learn from us, but not for us. The implications of allowing surveillance capitalism to thrive in such an unchecked fashion could have grave outcomes for society as we currently recognise it. Surveillance capitalism’s disregard for the personal and the social in the pursuit of profit could lead to a destabilisation of democracy itself. 1 Now, understanding the operations of surveillance capitalism and what is at stake within it more widely, our narrower question is, of course, how does this new reality relate to, or bear upon, freedom of speech? The answer to this question involves how companies use our behavioural surplus to manipulate our behaviour, including our speech. To achieve this, companies must breach our privacy, regulate our access to information, and coerce our behaviour—all of which have a harmful effect on our freedom of speech. Remembering that “[o]n the viral internet … deactivating emotions are merely market inefficiencies”, internet companies seek to produce activating emotions within their user base to maximise engagement with their platform (Marantz, 2019, p. 79). The result is that these corporations use the “reservoir of data they have accumulated about users” to “anticipate our thoughts and emotions”, showing us the content that is most likely to get us to stay engaged in order to maximise their advertising revenues (McNamee, 2019, p.  85). Roger McNamee (2019, p.  87), alongside other critics, notes how these tactics lock us into filter bubbles—a phenomenon in which users are selectively fed information primarily based on their past engagement behaviour, as well as what they and others in their friend networks have ‘liked’ and ‘shared’, creating a state of “intellectual 1  Zuboff draws a correlation here between the industrial civilisation of recent times and the burgeoning information civilisation: “Just as industrial civilization flourished at the expense of nature and now threatens to cost us the Earth, an information civilization shaped by surveillance capitalism and its new Instrumentarian power will thrive at the expense of human nature and will threaten to cost us our humanity” (Zuboff, 2019, pp. 11–12).

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isolation”. These filter bubbles foster extremism on both sides of the political spectrum, denying users an opportunity to be exposed to counterargumentation. It is as if there were a blue Facebook (for progressives) and a red Facebook (for conservatives) in the United States, for instance, wherein readers who only get news via Facebook will experience different commentators, perspectives, and even covered events than their neighbours. McNamee (2019, p. 88) argues that companies such as Facebook do not care for the outcomes of these algorithms that produce these bubbles, only caring for the increase in engagement: “Getting a user outraged, anxious, or afraid is a powerful way to increase engagement … Best of all, from Facebook’s perspective, outraged or fearful users in an emotionally hijacked state become more reactive to further emotionally charged content”. Such manipulations were seen in what has become known as the Cambridge Analytica scandal. During the 2016 US general election, the British consulting firm Cambridge Analytica “used online microtargeting to boost voter turnout for Trump, inhibit voter turnout for Clinton, and help nationalist memes go viral on Facebook” (Marantz, 2019, pp. 110–111). The data used to enable this microtargeting was harvested from the Facebook profiles of millions of US voters, the majority of which was done without their knowledge. As McNamee (2019, p. 183) notes, “[t]hose worried about privacy on Facebook saw their worst fears validated”. The scandal brought to the mainstream the knowledge “that sharing private user data with third parties was one of the core tactics that contributed to Facebook’s success” (McNamee, 2019, p.  184). Cambridge Analytica took the data set they harvested from Facebook and “married the data set to US voter files, which include both demographic information and voting history”, allowing them to “target advertising inside Facebook with exceptional precision, particularly if one of the goals was voter suppression” (McNamee, 2019, p. 185). The outcome of the operation is recounted by McNamee: In 2016, the winner in the electoral college lost the popular tally by nearly three million votes. Three states, which Trump won by a total of 77,774 votes, provided more than the margin of victory in the electoral college. Is it possible that the Cambridge Analytica data set might have influenced the outcome? Yes. It’s virtually impossible that it didn’t. (McNamee, 2019, p. 185)

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The techniques of corporations operating under a framework of surveillance capitalism constitute a threat to democracy. By manipulating the information that people have access to via their social media, these companies are exerting influence over public discourse. It is notable that if these companies were the US government, they would be prevented by law from acting in such a fashion by the First Amendment. However, as the First Amendment does not apply to private businesses, democracy will continue to suffer under this regime of surveillance capitalism. David Kaye explains this idea as follows: In their early years, it would have been an acceptable response to say: Hey, these are private companies! They’re not governments! Who cares what rules they adopt? Join or don’t join, stay or leave. Before they became global forces dominating public space worldwide, these companies were competing with others for users. They could be idiosyncratic, protecting their users’ rights but experimenting in a kind of cocoon of rulemaking and enforcement while in the process of maturing into major global institutions. That no longer pertains to the kind of platforms at least these three  – Facebook, YouTube, and Twitter  – have become. Their decisions don’t just have branding implications in the marketplace. They influence public space, public conversation, democratic choice, access to information, and perception of freedom of expression. They can no longer hide behind the curtain of corporate competitiveness. They have to acknowledge their unusual, perhaps unprecedented, roles as stewards of public space. (Kaye, 2019, p. 52)

The position of these corporations grants them unprecedented authority over public discourse. Through a complete dominance of the marketplace, users are obliged to follow the rules set by the platforms without any true way of appealing against the conditions to which they become subject. This reflects the claim made by critical legal theorist Franz Neumann that through the process of monopoly, a company effectively becomes a lawmaking body: The monopolist can do without the assistance of the law courts. His power is a sufficient substitute for the judicial action of the state. Even when utilizing the form of the contract, his economic power enables him to impose upon consumers and workers all those rules which he deems indispensable and which the other parties are forced to accept if they want to continue to exist. (Neumann, 1966, p. 59)

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The argument made by Kaye in his text Speech Police: The Global Struggle to Govern the Internet is that these companies “lack democratic accountability and oversight” and thus “cannot be expected to be public interest-­ minded governors and adjudicators of speech over the long term” (Kaye, 2019, p. 112). Furthermore, he contends that leaving these private companies in control of the limits of speech will ultimately result in risking “the kind of expression that is essential to open political systems” (Kaye, 2019, p. 112). This control over the public discourse must be accounted for. The ability for an oligarchy of tech giants to decide what speech is permissible and what speech should be excluded sets a dangerous precedent for freedom of speech. Such freedom depends on what ideas people have and what information they have access to. If the latter is prefiltered for them, their freedom of thought and of speech is limited. For example, as an increasing number of people turn to Google for search results, the power of Google to construct ‘reality’ becomes increasingly unprecedented. They can boost certain search results, bury others, or even remove them all-together. These actions may be conducted by humans or algorithms, and they may be made consciously or unconsciously. The point remains that Google (in this instance) has control over the discourse—they decide who gets access. The ability to control individuals in this context is reminiscent of arguments made by Augustine regarding freedom of conscience and the use of ‘benevolent force’. Just as Augustine saw it as a Christian duty to persuade those who turned from God (or the correct interpretation of God) back into the fold, a company such as Google could find it acceptable to use its influence over users to promote its own ends. There is also cause to recall Hannah Arendt’s arguments from Chap. 3 regarding how truth can be manipulated in the service of power. Just as governments will alter or ignore factual truths to preserve their power and achieve their own ends, so too it may be argued of the tech giants as they find themselves in a similar position of power and influence. Placing the decision of what constitutes allowable speech in the hands of a private corporation is no better than placing it in the hands of a dictator or a monarch. Private entities should not be able to regulate the speech on their respective platforms under conditions where this jurisdiction can be extended to include our entire global community. This leads to a situation under which our global standard of acceptable speech can be dictated to us by a tech company CEO.

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The emergence of surveillance capitalism and the continued trust placed in social media platforms to create and police their own free speech policies has now led to a situation where the ethics surrounding related concepts such as privacy and defamation have also become blurred. I will now look to address the impact they have endured in an era of internet and social media.

Privacy and Defamation To begin with privacy, the question of what individuals should and should not be able to keep undisclosed is one that continues to have a growing impact, considering its continued erosion at the hands of both public and private actors. The contemporary global context, with its twin fascinations—counterterrorism and targeted advertising—has seen a situation where privacy has seemingly become something of an obstacle to be overcome, as opposed to a protected element of human freedom and dignity. The continuing tension between privacy and the need for information— often framed in these debates as privacy versus the greater good or privacy versus progress—is one that requires attention. While it may not seem immediately apparent, there is a connection between the concepts of freedom of speech and privacy. According to Timothy Garton Ash, this connection can be understood when we recognise privacy as being a condition of free speech: To be more precise: the ability to choose what you wish to keep private, and then to have confidence that this choice will be respected, is such a condition. As anyone who has lived in a police state knows, when you fear that someone else might be listening in all the time, you curb your tongue. You no longer speak your mind. (Garton Ash, 2016, p. 285)

What Garton Ash is describing here is how a necessary element of freedom of speech is the ability to withhold speech on the basis of the perceived audience. He recognises that as individuals, we all speak “differently to different audiences: more freely to some, less to others” and that this is something that should be protected (Garton Ash, 2016, p. 285). For an individual to have a right to freely express themselves, they must also have the freedom to choose not to express themselves. Just as there can be injustice in coercing silence, there can be injustice in coercing speech.

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However, just as there has been a discussion about the acceptable limits of free speech, so should it follow that there be a discussion centred on the limits of what should be allowed to remain private. Just as certain forms of speech can cause harm and require regulation, the withholding of certain information can also lead to harm, meaning that there can be justice in the removal of privacy in certain contexts. There is also the concern of what to do when freedom of speech and privacy seemingly go up against each other. In many ways, there is a tension between freedom of speech and privacy that requires a balancing act to be performed whenever they come into conflict. Understanding this relationship is especially important when considering how privacy and the freedom to procure information came into conflict following the 9/11 attacks on the United States and the resultant change in perspective on privacy from Western governments. The case for the limiting of privacy in this scenario appears simple enough: “It can be argued that one of the prices to be paid for security is the compromise of privacy in relevant respects – principally the interception of communication” (Grayling, 2010, p. 111). This notion would appear to make sense, provided that adequate checks and balances are in place. It would not appear to be unjust to withdraw the right to privacy from an individual seeking to use the cover of privacy to cause harm to others. The problem comes with the question of what threshold of evidence is required to allow such an action to be taken. The potential for abuse of power must also be accounted for in any such decision, especially considering the many examples of government overreach, both past and present. There is no guarantee that even if a current government does use its powers in accordance with the purpose with which they are intended, that any subsequent government will utilise those same powers in the intended way. Just as private powers must be held accountable with the surveillance technology that the internet makes possible, so must public powers. While there is always a context under which such surveillance could be justifiable, this decision must never be able to be made unilaterally. Any action taken by the state to invade the privacy of one of its citizens without this accountability can result in a situation where citizens may no longer have the ability to choose what they want to keep private about their lives. This can have dangerous ramifications when extrapolated to wider ideas of free speech, for if you cannot guarantee your privacy, self-censorship becomes the norm.

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In regard to defamation, the concept of reputation (and the defamation laws that protect it) are arguably intrinsically linked to privacy, in that part of a ‘reputation’ is, in some understandings, “the projection of the self to society” (Milo, 2008, p.  17). AC Grayling (2010, p.  110) is one who makes this link directly between the projection of self and privacy: “One aspect of importance is that [privacy] gives people a measure of control over the front they offer others, and the amount of information that others have about them, concerning matters that are personal, intimate, eccentric or constitutive of the individual’s inner life”. Therefore, any theory of privacy must account for understandings of both reputation and defamation. The argument put forth by figures such as Garton Ash and Grayling is that there needs to be “a test of ‘the public interest’ to determine when violations of privacy, and casting aspersions on someone’s reputation, are justified” (Garton Ash, 2016, p. 286). First, however, let us become more familiar with the concepts at hand. The concept of reputation can be difficult to define. While strict definitions may elude us, there are a number of concepts that Danial J. Solove has identified that come together to form a foundation for what we could consider reputation to be. These include the notions that “[o]ur reputations are forged when people make judgements based upon the mosaic of information available to us” and that “[o]ur reputation is an essential component to our freedom, for without the good opinion of our community, our freedom can be empty” (Solove, 2007, p. 30). Furthermore, as it relates to the self, Solove notes that our reputation “is one of our most cherished assets”, encompassing a “key dimension of our self, something that affects the very core of our identity” (Solove, 2007, pp. 30–31). In addition, Dario Milo notes some other key elements that help identify the concept, especially as it relates to the law: The crucial point is that reputation is regarded as an external assessment of a person’s behaviour and characteristics made by the relevant community, for example, neighbours, colleagues or the public at large. It is the projection of the self to society that the law protects, ‘even if it is an illusion’. This illustrates that what reputation protects is not ‘character’, which is what a person really is; reputation is what he seems to be. (Milo, 2008, p. 17)

From these descriptions, we can begin to understand how, through the concept of reputation, a tension could form between a right to privacy and a right to freedom of speech. While freedom of speech seeks to promote

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openness and transparency, without privacy, one could arguably not maintain a reputation—at least in accordance with how it is defined above. The ability to have at least a measure of control over the image one displays publicly requires the capacity to pick and choose which aspects of one’s true self are exposed and which aspects are kept private. Without privacy, reputation becomes something completely out of one’s control. This exposed existence erodes both personal autonomy and psychological well-­ being. The inability to withdraw from such exposure, Grayling (2010, p. 110) claims, “is almost the same as not having a self at all”. If a basic understanding of privacy involves “the right to control who knows what about you, and under what conditions”, then an argument can be made that causing such a loss of control over the self (through a deprivation or breach of privacy) is unjust (Garton Ash, 2016, p. 289). It is important to note here, before we continue, that not all breaches of privacy count as defamation (similarly, not all cases for defamation result from a breach of privacy). Garton Ash observes that there are two variations of privacy violations—intrusion without public exposure and both intrusion and exposure—“The former involves only what others know about you; the latter adds what they say about you” (Garton Ash, 2016, p.  288). Thus, it is public exposure that makes the difference, bringing forth the concept of defamation. This is because it is only when exposure becomes involved that reputation is brought into the equation and the idea of defamation comes into play. As noted by Milo (2008, p. 18), “[t]he claimant must show that the publication referred to him, was defamatory, and was published to third parties”. This clause regarding third parties is crucial to the concept of defamation “because reputation is not the good opinion a person has of himself, but rather the estimation of others” (Milo, 2008, p. 18). While it can be understood how both variants of privacy violation can be damaging, it is the exposure—leading to potential charges of defamation—that is more relevant to the discussion at hand. This is because it is here that we find the tension between the right to keep things undisclosed and the possible right to expose them. The conflict here involves to what extent a right to free speech extends to revealing the private matters of others, if at all. This is important to get right, for as Garton Ash (2016, p.  288) observes: “Your reputation can be restored by a prominently placed correction and public retraction by the defamer, plus a court verdict of libel if need be, but your privacy cannot be restored, any more than an ancient oak cut down by vandals can be brought to life again”.

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Once privacy is broken, it can never be restored to what it previously was. This sentiment is then amplified enormously when one considers the power of the internet not only to disseminate information globally but also to ‘remember’. This means that any breach of privacy will continue to remain, both fresh and available, potentially for all time. Thus, it appears critical that if someone’s privacy is to be violated, it should be with good reason. From this, we can understand that it is of critical importance how society should decide what counts as good reason for breaching the privacy of an individual. As should be clear by now, turning to Mill for answers is not an ideal choice. Recalling the seminar group model criticism, Mill’s epistemic justification can be twisted to allow any breach of privacy so long as the information exposed can be seen to be contributing to knowledge that will help society progress. This reasoning can be too easily manipulated and allows for privacy to be breached in most cases. For Garton Ash (2016, p. 290), when revealing possibly sensitive information about others, the “harms of exposure have to be weighed against the harms of non-exposure”. This is the test of the public interest, a complex review of the situation to determine the most just of outcomes. The process of this test is entirely based on the context of each individual, given situation—something that he implores we all consider when looking to make judgements regarding privacy and free speech: Once again, context is all. There is no substitute for a detailed balancing of privacy and reputation against the public interest in every individual case. At the borderlines, this balancing is done by courts of law, but in the vast inland territories of speech it needs to be done every minute, not just by editors and publishers but by every one of us who has become a potential publisher simply by virtue of having internet access. (Garton Ash, 2016, p. 291)

Privacy does not trump freedom of speech, nor vice versa—they both exist alongside each other. I would agree that context is crucial to the test of the public interest and would base such a test on a model of free speech based not on discovering the truth of matters but instead upon a certain conception of toleration (which I will address in the following chapter). The increasing omnipresence of the internet since the late 1980s and the more recent triumph of social media have irreversibly changed communication. The ability for speech to traverse the entire globe in an instant and be stored indefinitely has led to a social context under which the principle of freedom of speech has come into question. The rise of social media

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platforms to near-universal levels of participation coupled with a distinct lack of speech regulation has led to a myriad of issues that are causing tension and conflict in the modern world. While the unfettered nature of the internet was initially seen as a force for good in the world, the unchecked emergence of extremist rhetoric and ideology allowed to prosper online has resulted in a space where harm has become normalised and the boundaries of defamation, unclear. The turn by internet companies towards surveillance capitalism—a method of operation wherein user behaviour is commodified and all functionality is driven towards creating more user engagement for the purpose of profit—has created further issues for the place of freedom of speech in relation to the internet. Problems arising from this new online context include the emergence of filter bubbles, the influence over speech by corporations, and the destruction of privacy. Arriving at this point, it is now time to move towards addressing what I believe to be a much stronger justification for freedom of speech in our contemporary society. A framework for freedom of speech that is both just and universal that I call reflexive freedom of speech. However, before we address the specifics, we must first gain a proper understanding of a much-­ misunderstood concept—which continues to be misunderstood to this day—the concept of toleration. For it is through a particular conception of toleration that reflexive freedom of speech necessarily operates.

References Garton Ash, T. (2016). Free speech: Ten principles for a connected world. Atlantic Books. Grayling, A. (2010). Liberty in the age of terror: A defence of civil liberties and enlightenment values. Bloomsbury. Kaye, D. (2019). Speech police: The global struggle to govern the internet. Columbia Global Reports. Marantz, A. (2019). Antisocial: Online extremists, techno-utopians, and the hijacking of the American conversation. Viking. McNamee, R. (2019). Zucked. Penguin Books. Milo, D. (2008). Defamation and freedom of speech. Oxford University Press. Nagle, A. (2017). Kill all normies. Zero Books. Neumann, F. (1966). The democratic and the authoritarian state. The Free Press. Solove, D. J. (2007). The future of reputation: Gossip, rumor, and privacy on the internet. Yale University Press. Zuboff, S. (2019). The age of surveillance capitalism. Profile Books.

CHAPTER 6

A Turn Towards Toleration

The concept of toleration has a long and often controversial history, which has led to it holding a somewhat precarious position in today’s society. Where some see it as a defining characteristic of our contemporary era, others have come to view it as a force of tyranny, used to unfairly police those who simply wish to ‘speak their mind’. There are some who have looked to toleration to justify freedom of speech, only to find it lacking. However, by following the work of the political theorist and philosopher Rainer Forst, we will come to see that such understandings of toleration are too narrow. Forst’s analysis of and framework for toleration helps to scaffold and reinforce my own understanding of freedom of speech as a species of the greater genus of toleration. You can have toleration without freedom of speech, but you cannot have freedom of speech without toleration. Free speech is just one of many elements that encompass the wider programme of toleration. These include but are not limited to freedom of belief, worship, conscience, assembly, privacy and action (within the bounds of the law). Therefore, what I present to you now is my case in favour of toleration, specifically reflexive toleration, as the best way to justify freedom of speech in our contemporary society. Let us begin by gaining a thorough understanding of toleration through the lens of Forst’s work. Forst’s contributions to toleration theory are rightly well regarded by scholars, especially his monumental text on the subject Toleration in Conflict: Past and Present, which has been described

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among other descriptors as a “masterpiece” (Bejan, 2020, p.  24). Toleration, according to Forst, is distinctive among concepts of social conflict due to its unique acceptance of nonresolution. The adoption of tolerance occurs because conflicting parties recognise a counterbalance between reasons for objection and acceptance of others’ views that causes them to re-evaluate their position to a more tolerant standing. Hence, for Forst (2016, p.  1), “the promise of toleration is that coexistence in disagreement is possible”. Furthermore, this coexistence is viewed as a necessary part of human existence: “conflicts that prove to be irresoluble are clearly as much a part of human existence as is the desire that they should not exist” (Forst, 2016, p. 1). The demand for tolerance thus emerges within social and historical contexts and not outside or beyond them. However, complexities arise from this definition, of which Forst is very much aware. By situating toleration within social contexts and their conflicts, toleration can also become the object of such conflicts: The meaning of toleration is not only unclear but also profoundly controversial, both in the history of the concept and in the present day. It can happen, for example, that one and the same policy or isolated action is regarded as an expression of toleration by one person and an act of intolerance by another. But, still worse, it is even contested whether toleration is something good at all. (Forst, 2016, p. 2)

It would appear then that the idea of toleration may be more multifaceted than we might first expect. This multifaceted nature is expressed by Forst through his notion of concept and conception. According to Forst, there is only one concept of toleration, yet there are multiple, differing conceptions of toleration that have evolved across history. These conceptions are and continue to be in conflict with one another—highlighting the conflict within toleration itself. Forst notes how these conceptions often disagree over the role of both power and morality within toleration, often leading to the expression of toleration in what he labels either ‘vertical’ or ‘horizontal’ formulations: In the former, (vertical) toleration is understood chiefly as a political practice, a form of state policy, whose purpose is to maintain freedom, public order, stability, the law of the constitution  – and thus always also power. From the second perspective, (horizontal) tolerance is understood as an atti-

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tude or virtue of persons in their behaviour towards one another. Toleration appears to them to be the right and appropriate response to the conflicts rooted in their incompatible ethical convictions. (Forst, 2016, p. 6)

While these perspectives cannot always be separated and indeed do appear simultaneously in certain formulations, highlighting their difference is still an important facet of understanding the workings of toleration, its practice and its justifications. Now, before taking a deeper look into Forst’s conflicting conceptions of toleration, we must first look to his justification of how toleration functions as a singular concept. While there may appear to be many different variants of toleration on offer for us to choose between, Forst attempts to make clear that each of these ‘usages’ of toleration are part of the same core concept, with such ‘usages’ rather being his conceptions of toleration: For, if these usages are to count as intelligible understandings of toleration, they must share a core meaning, and this core is the concept of toleration. They differ in how they elaborate this core and thus constitute different conceptions (or ideas or notions) of toleration. (Forst, 2016, p. 17)

Following this approach, Forst identifies six separate elements that comprise the core concept of toleration, which I will now address.

The Six Elements of the Concept of Toleration The first of the six elements comprising the concept of toleration is the context of toleration. This element describes the situational aspects that must be taken into account when trying to understand why toleration is occurring. This includes contextual elements such as the relationship between the tolerator and the tolerated, the subjects of toleration, the objectives of toleration and the restrictions that the adoption of toleration puts in place. Forst (2016, p. 18) notes that “The reasons for or against toleration will shift according to context; in one, toleration may be exercised out of love, in another, for pragmatic reasons or based on mutual respect”. Without a proper understanding of context, no real understanding of the functioning of toleration can be gained. The second element is the objection component. For toleration to exist, there is a requirement that certain actions or beliefs be objected to by others. Without this objection component, there would only be indifference

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(the absence of negative or positive valuation) or affirmation (positive valuation)—two attitudes often associated, but ultimately incompatible with toleration. It is important to reiterate that the objection component should be weighed against positive reasons for acceptance without voiding the objection component. While Forst thinks it too much to demand objective criteria for reasons for objection, he does recognise that certain criteria for ‘rational’ critique cannot be dispensed with. Without this, toleration could be reasoned on pure prejudice, leading to what Forst calls the paradox of the ‘tolerant racist’. Under this idea, someone holding racist views could be justified in being ‘tolerant’ provided they showed restraint in their actions (without changing their underlying, bigoted views). For this reason, it is required that for any objection component to be defensible, it must meet the “minimal conditions for objection judgements” which exclude any “grossly irrational or immoral prejudices” (Forst, 2016, p. 20). The third element is the acceptance component. This component specifies that while certain tolerated beliefs or actions are condemned as being wrong, they are not so wrong or bad that their toleration cannot be justified by other, positive reasons. What is important to understand here is that the acceptance component should never be strong enough to outweigh the objection component—otherwise you would simply have agreement, rather than a context for toleration. One problem associated with the acceptance component occurs when the reasons for both acceptance and objection come from the same place, specifically a moral one. If one’s reasons for both accepting and rejecting a certain belief or idea are based on moral judgement, then one is forced to grapple with the conundrum of how it is morally righteous to tolerate something that is morally wrong. Forst calls this simultaneous moral duty to both tolerate and not tolerate an action the paradox of moral toleration. To resolve this paradox, Forst calls for a recognition of a distinction between moral and ethical reasons for toleration. The distinction here for Forst involves a system of justification (which we will explore in greater detail soon) based on mutual reciprocity (moral justification) as opposed to a system of justification based on personal beliefs or values (ethical justification). Forst argues that if one uses their own personal framework of belief about what is right and wrong—their own ethical reasoning—then one risks falling into the paradox of the relativisation of truth. This paradox states that one will always be compelled to assume their own convictions are true, yet people’s convictions about normative and political matters differ. This poses a problem because it requires that any successful

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conception of toleration must account for the relativism between ethical frameworks without ultimately falling into relativism itself. Utilising a system of moral justification based on mutual reciprocity avoids these paradoxes. The fourth element is the rejection component. There are necessary limits to toleration, as Forst (2016, p. 23) notes: “Wanting to tolerate ‘everything’ is contradictory, for … if toleration extends to the enemies of toleration, it leads to its own destruction”. To draw a limit on toleration and avoid this paradox of self-destruction, Forst (2016, p. 23) offers us the rejection component “for rejecting convictions that can no longer be offset by reasons for acceptance”. There are three domains in which relations can be categorised: one, the domain of complete agreement in which there is no objection; two, the domain of toleration, wherein both a component of objection and acceptance are present, leading to toleration; and three, the domain of what cannot be tolerated—that which is strictly rejected. While this drawing of limits does work to resolve the paradox of self-destruction, Forst does recognise that it creates another paradox—the paradox of drawing limits— which states that true toleration can never be achieved because the act of drawing a limit could be considered intolerant in itself. Thus, to avoid this paradox, a successful conception of toleration must not draw limits by appealing to specific ethical frameworks or any other sources of power. Forst’s (2016, p. 25) answer is to base toleration “on a higher-level, generally justifiable foundation which cannot be deconstructed as one-sided or arbitrary”, more specifically “a reflexive determination of limits” whereby people must be able to reciprocally justify their reasons for outright rejection. The final two elements have much shorter explanations. The fifth element is the exercise of free will. Toleration must be exercised through one’s own free will and must not be the result of force or coercion. Without this one could not truly be said to be tolerating something, they could only be said to be enduring it. Last, the sixth and final element comprising the concept of toleration is toleration as both practice and attitude. Forst (2016, p.  26) writes that toleration can “signify both a practice and an individual attitude or (given a corresponding justification) a virtue”. This is a reiteration of how context remains crucial in assessing how toleration functions in each particular setting that we may wish to analyse. These six elements are, if we are inclined to agree with Forst, present in every variety of toleration that could exist. They make up the concept of

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toleration, from which the differing, evolving conceptions of toleration arise. Forst has identified four main conceptions of toleration that have appeared across human history, which account for four separate interpretations of the elements listed above. While such conceptions can coexist simultaneously within societies, complicating matters analytically and sometimes normatively, it is more often the clash between competing conceptions that represents the greatest conflicts in toleration theory. With that said, I shall now move on to address Forst’s four conceptions of toleration.

The Four Conceptions of Toleration The first of the four conceptions of toleration is the permission conception. This form of toleration is in operation when an authority or majority gives permission for a minority to live in accordance with its convictions so long as this does not interfere with the ruling class/majority. Toleration under this conception is justified by its pragmatic and political functions in providing an alternative to sectarian conflict or forced assimilation, thereby sustaining law and order by reducing conflict potentials in the political community. Additionally, it reflects the increasing awareness across history that forcing someone to renounce or otherwise be compelled to let go of or denounce their deepest convictions (namely, religious or political beliefs) is ethically illegitimate. This is a vertical form of toleration and is thus one way and not reciprocal. The second conception is the coexistence conception, a pragmatic concept that relates somewhat to the permission conception. The main difference is that in a coexistence situation, both parties are of equal strength. Both parties recognise that peace is integral to maintaining their own interests, creating a horizontal relationship where toleration flows both ways. In preferencing a peaceful coexistence above a constant state of conflict, all parties enter into a stalemate of sorts. Because of this, the coexistence conception is rather unstable, as any shift in the power balance will signal the end of toleration between the conflicting parties. The third conception is the respect conception, which, like the coexistence conception, is a horizontal form of toleration. However, it differs in that it “proceeds from a morally grounded form of mutual respect on the part of the individuals or groups who exercise toleration. The tolerating

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parties respect one another as autonomous persons as equally entitled members of a political community constituted under a rule of law” (Forst, 2016, p. 29). This is an important distinction, for unlike those maintaining an uneasy truce under the coexistence conception, those operating under a respect conception of toleration recognise one another “as ethically autonomous authors of their own lives or as moral or legal equals” (Forst, 2016, p. 30). This conception does not in any way compel you to agree with or value the convictions of others (or even find them to be true or ethically good), for this would be in danger of removing the objection component and tolerance would then not be needed. Rather, it is the person themselves who demands respect: “The person of the other is respected; her convictions and actions are tolerated” (Forst, 2016, p. 30). The fourth and final conception is the esteem conception. This conception appears more prominently in discussions of multicultural tolerance, as it involves a “more demanding form of mutual recognition” wherein “toleration means not only respecting members of other cultural or religious communities as legal and political equals but also esteeming their convictions and practices as ethically viable” (Forst, 2016, p.  31). One of the biggest issues facing this conception is whether it can remain a conception of toleration at all. Forst (2016, p.  32) stipulates that for the objection component not to be lost, “the esteem in question must be limited or ‘with reservations’, such as that the other form of life does not count as equally as good as, or even better than, one’s own – at least not in the respects which matter”. Another large issue faced by this conception is that it is perceived and experienced by many people as highly demanding or even intrusive. These people experience the request to not simply tolerate but esteem difference as an illegitimate attempt to control what can be said and thought. Such a perspective then informs the extremely strong negative reactions to the liberal left’s esteem conception of toleration that libertarians and other voices on today’s political right are vocally expressing on and offline around the world today (as we covered in Chap. 4). Forst’s task in identifying these conceptions is to decipher which one is the best fit for any given context—and more specifically, our current context. He does not believe this task can be achieved by conceptual analysis alone, as he regards toleration as a normatively dependent concept, one “which is indeterminate without other normative principles” (Forst, 2016, p. 32). Because of this, he views the history of toleration as “the history of the justifications used to fill the three components of objection, acceptance and rejection with content” (Forst, 2016, p. 33).

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One issue that arises out of this normative dependency is that toleration considered in such a way cannot be a value-in-itself. It can only be something that acquires value (and can become a virtue) “if and only if the corresponding components are well grounded” (Forst, 2016, p. 33). It is because of this, Forst (2016, p. 33) believes, that false toleration can occur when “unacceptable moral offences are passively tolerated”; for instance, when some majority tolerates violence towards a minority group. Therefore, toleration can be a positive attitude or practice only when “it subserves something good, that is, when it is required for the sake of realising higher-level principles or values and is justified accordingly” (Forst, 2016, p. 33). From this understanding, Forst makes it clear that his goal is to find a version of toleration that works best to resolve the paradoxes from above, providing a universal justification for toleration.

Reflexive Toleration There is more to this discussion than just a sharpening of conceptual understanding. What Forst (2016, p.  449) finds to be at stake in such conflicts between justifications of toleration is the “legitimacy of practical liberties or of restrictions on the realm of freedom of action”. He observes how our modern societal context has thus seen “continual surpassing of existing levels of toleration and called for new justifications of toleration” (Forst, 2016, p. 449). Forst answers this call for a new justification by advocating for a reflexive conception of toleration, one that primarily draws from the model of toleration initially put forth by Pierre Bayle in the seventeenth century. Bayle’s model of toleration was formed in the context of the reign of Louis XIV of France, who in 1685 revoked the Edict of Nantes—a final move in a series of actions against the Protestant community in France that ended their rights to equal citizenship with the Catholic majority. Bayle, himself a Protestant, was a part of the Huguenot diaspora that settled in the Dutch Republic, a key centre in the development of toleration. It was from these conditions that Bayle produced the most comprehensive theory of toleration to date. Whereas other famous thinkers—such as Augustine before him and John Locke after him—would argue for a model of toleration based on

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freedom of conscience, 1 Bayle would instead focus on what Forst would come to label a reflexive toleration. In his 1686 work A Philosophical Commentary on These Words of the Gospel, Luke 14:23, “Compel Them to Come In, That My House May Be Full”, Bayle addresses the titular passage from the gospel of Luke (14:23): “And the lord said unto the servant, Go out into the highways and hedges, and compel them to come in, that my house may be filled”. Bayle is very wary of this passage, which could be treated by Christian zealots as a divine authorisation for the compulsion of nonbelievers to the faith—even if those measures would usually be considered unjust: “That what might be unjust, if consider’d as not being done in favour of the true Religion, becomes just by being done for the true Religion” (Bayle, 2005, p. 88). He also recognises another major problem that emerges from this passage: if one group of religious zealots could justify their actions in this way (divine right), then what is there to stop other groups from doing the same: “all others woul’d think themselves authoriz’d to take the same methods, because each Sect looks on it self as the only true Religion, or at least much the truest; and looking on all others as Enemys to God, or imperfect at best” (Bayle, 2005, p. 89). Thus, a situation emerges where either conflicting groups accept each other’s equal claim to just reasons for action based on divine right, or be forced to throw out the justification all together. Otherwise, you arrive at the absurd place where one person can deny another person their rights/freedoms based on their convictions and consider it completely justifiable, yet consider it completely unjustifiable if their own rights/freedoms were taken away based on the very same convictions (albeit from an alternate perspective). For example, if one person says to another “My God is the true God and he forbids you to marry the person of your choosing”, they would probably find it obscene if the other replied “Well, I believe my God is the one true God and he forbids you to marry the person of your choosing”, and yet the justification is the same. It is in order to live with this type of conflict that the space for reflexive toleration emerges. 1  The argument from freedom of conscience—that one should tolerate the convictions of others because only by allowing people to freely choose their convictions can true commitment to those convictions be instilled—suffered greatly due to the reality that acts of manipulation and compulsion can effectively deter people from their original convictions (e.g., Pagan beliefs) and encourage a deep commitment to those they initially opposed (such as Christianity). Augustine came to this conclusion on his own, whereas Locke was only made aware of it through his correspondence with Jonas Proast.

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Bayle’s model of reflexive toleration contains both a normative and epistemological component in its justification. The normative component encompasses a general reciprocity across all humanity in regard to one’s actions, whereby one must be able to justify one’s actions by maintaining that they would not deny others the same action in a reversed position. This works together with the epistemic component, the recognition that no person has an infallible claim to absolute truth and that any attempt to make such a claim can be met with an opposition claim of equal standing. Any action that is justified without giving consideration to reciprocity or to the equal claim on truth will thus result in a breach of toleration—an unjust action. Developing on Bayle’s initial formulation, Forst’s (2016, p. 450) reflexive model argues “that it is against the principle of reciprocal justification itself that relations of toleration must be measured”. What Forst is alluding to here is that toleration must be justified by the principle of justification itself, a key concept in his philosophical framework. The principle of justification is described by Forst (2014, p. vii) in The Right to Justification as the normative core of human morality: “the one basic human right to justification”. This follows from his view of human beings themselves as justificatory beings, that is, autonomous beings endowed with reason that are therefore “justifying, reason-giving beings” (Forst, 2014, p.  13). Thus, we have the ability to give reasons to ourselves and to others—to justify our choices in belief or action. What this means is that every choice we make as human beings is subject to this process of justification. As Forst (2014, p.  1) remarks, “no matter what we think we do, we place upon ourselves (and others) the demand for reasons”. In the political context, this creates a normative demand for justice: Overarching every form of political community, it not only demands reasons for why someone has or does not have certain rights or goods, but first and foremost asks how it is determined who has a claim on what and how participants, understood democratically in their dual role as authors and addressees of justifications, stand in relation to one another. (Forst, 2014, pp. 1–2)

This idea of justice is an attempt to do away with arbitrariness in sociopolitical life. No person(s) should be able to claim something for themselves without justification; in denying justification to the other (denying their

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right to justification), you engage in domination. Thus, the right to justification “expresses the demand that there be no political or social relations of governance that cannot be adequately justified to those affected by them” (Forst, 2014, p. 2). This idea of justice is central to Forst’s moral and political theory. The ability to give and demand reasons of others is the most fundamental element of normative relations. For Forst, the right to justification is that which emancipates humanity and allows human dignity to emerge: The demand for justice is an emancipatory demand, which is described with terms like fairness, reciprocity, symmetry, equality, or balance; putting it reflexively, its basis is the claim to be respected as an agent of justification, that is, in one’s dignity as a being who can ask for and give justifications. (Forst, 2014, p. 2)

It is for these reasons that Forst (2014, p. 2) argues that we should understand “political and social justice on the basis of a single right – the right to justification”; the ground upon which we can build the greater structure of our society. In this way, the right to justification functions for Forst (2014, p. 2) as a reconstruction of the Kantian categorical imperative to “respect other persons as ‘ends in themselves’”. The process through which justice is determined in this framework we have already briefly touched on, but let us now go into more detail. There are two normative components that must be satisfied under Forst’s principle of justification for a reason for action to be considered just: reciprocity and generality. The first of these, reciprocity, “means that no one may refuse the particular demands of others that one raises for oneself (reciprocity of content), and that no one may simply assume that others have the same values and interests as oneself or make recourse to ‘higher truths’ that are not shared (reciprocity of reasons)” (Forst, 2014, p. 6). These two reciprocities (of content and of reason) form the basis of what Forst labels in Toleration in Conflict as normative-epistemological toleration, with the normative element representing the reciprocity of content and the epistemological element representing the reciprocity of reasons. However, before we move on completely to readdress toleration in this context, we must also address the second component, generality. For Forst (2014, p.  6), “[g]enerality means that reasons for generally valid basic norms must be sharable by all those affected”. This means that the right to justification must be granted to any person(s) that would be affected by

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the actions you take—“normative solution[s] must take the claims of every single person into consideration and cannot be brokered by two socially dominant parties” (Forst, 2016, p. 455). This component is integral to the universal nature of both what Forst is arguing for and subsequently what I intend to argue for in relation to free speech. In relating this back to the subject at hand, what Forst establishes is a reflexive toleration based on the principle of justification. The nature of humans as justifying beings with a right to justification requires that a reciprocally valid justification must be given for any denial of toleration. According to Forst, this understanding of reflexive toleration also resolves the paradoxes mentioned in the earlier recounting of the concept of toleration. This resolution allows Forst’s toleration to avoid the possibility of being inverted into a justification for intolerance as a result of such paradoxes. By filling the rejection component for toleration with a denial of reciprocity, Forst draws a very clear limit that intolerance should not be required to be tolerated. With this idea of reflexive toleration now established in our understanding, I can now address the critical argument of this book—its application to freedom of speech and the implementation of a reflexive freedom of speech in contemporary society.

Reflexive Freedom of Speech It should be clear by now that the most prominent and celebrated justification for free speech in our contemporary society—epistemic freedom of speech—has flaws that need to be addressed. The case I now want to make in this book is that epistemic freedom of speech 2 will ultimately fall short of the goal of being a truly just and universal free speech justification because it is not based on reflexivity. This lack leaves epistemic free speech at risk of being inverted into a justification for illegitimate censorship. Any argument for freedom of speech based on appeals to external ethical systems of value (which, remember, are separate from moral values) will necessarily fail to abide by the reciprocity required for a truly universal and just freedom of speech. Thus, it is through reflexive toleration—a toleration grounded in the right to justification—that we should justify freedom of speech in our society.

2  As well as any and all other freedom of speech justifications not grounded on a fundamental right to justification.

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The idea of using toleration in connection with freedom of speech is not entirely new, having been addressed in the final chapter of Jeremy Waldron’s The Harm in Hate Speech. Waldron makes the case that the justifications used by toleration theorists throughout history to prevent religiously motivated violence could also be utilised to provide a justification for a duty of nondiscrimination: “Our hypothesis might be that calumnies and libels of [the] extreme kind come close to being prohibitable by the principles of mutual toleration, just as laws prohibit physical attacks against people and their property” (Waldron, 2014, p.  210), However, Waldron’s (2014, p. 204) work here is not comprehensive, as he himself admits: “Until recently, I never thought to make a connection between that debate [toleration] and the debate about hate speech. But I believe there is a connection to be made”. Waldron’s analysis does not address the arguments surrounding toleration with the comprehensiveness and sophistication of Forst. The result of this is that Waldron, while calling for the policing of speech through a framework of toleration, does not go far enough in his justification for both why and how this would function. Another figure who does address the idea of justifying freedom of speech on a framework of toleration is Alan Haworth. Haworth argues that because (religion-focused arguments for) toleration and freedom of speech are both key tenets of liberalism, they appear to have a relationship. However, Haworth believes that trying to transfer or update a theologically focused argument for a wider, more secular context is always going to generate problems. Similar to the transfer of the epistemic justification from Milton to Mill, Haworth finds appropriating the famous argument for religious toleration found in John Locke’s Letter Concerning Toleration to not be fit for purpose in a contemporary free speech context. He points to a number of issues in Locke’s work, including his fondness for the freedom of conscience argument that we discussed previously. He also addresses the reality of Locke’s position not as a defence of universal toleration but rather for toleration to exist between Christians alone. This is an important criticism to address, especially considering the importance of moving beyond the use of outdated theories to my overall argument. However, Locke’s theory of toleration should not bother us for one very important reason: it is not a reflexive toleration, and therefore, it holds no sway over the eventual successes or failures of reflexive freedom of speech. Locke clearly rests his ethical foundations—and subsequently his framework for toleration—on his Protestant concept of God: “those are not at all to be tolerated who deny the being of God. Promises,

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covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist” (Locke, 2005, p.  172). Forst considers Locke’s theory of toleration in the Letter to be so concerned with what morality would look like without a foundation in God that he coins a term for it: Locke’s fear. This form of toleration is clearly not a conception of toleration based on mutual respect and a right to justification. Therefore, while Haworth’s concerns are valid—I agree that Locke’s toleration is not appropriate as a model for contemporary freedom of speech—fortunately, they are of no concern to the argument I am making in this book. What I contend is that freedom of speech should be solely defended on the single human right to justification—a reflexive freedom of speech. The limits of speech are to be determined only by the bounds of the principle of justification and the resulting toleration reached between conflicting parties. Any act of censorship must be reciprocally justifiable to both parties. What results from these conditions are the boundaries of acceptable speech within a given society. As with Forst’s reflexive toleration, no appeals to the greater truth of personal convictions can be used to overrule these boundaries. This is because any appeal to an external ethical framework can be cancelled out by an opposing appeal to a rival ethical framework. The limits of acceptable speech are justifiable only through this reciprocity of contents and reciprocity of reasons. This reciprocity, combined with generality, can create a framework of freedom of speech that is both truly just and universal. No one individual, faction or party of people can deny freedom of speech to another or impose any censorship upon them without a reciprocally valid justification. With my model of reflexive freedom of speech now detailed, we can begin to address its own application in the real world, similar to how we looked at epistemic freedom of speech’s real-world application in Chap. 3. However, just before we do that, it is important to address any potential theoretical criticisms that may arise for my reflexive free speech justification based on Forst’s reflexive toleration. I believe a good way to start to do this would be to address criticism of Forst’s work that may be pertinent to my own.

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Criticism of Forst’s Theory of Toleration Looking at the dissenting voices that challenge Forst’s conception of toleration, it is necessary to address any potential issues with reflexive toleration, as they may also be present in reflexive freedom of speech. Forst’s work on toleration—especially in Toleration in Conflict—is widely acclaimed by scholars whose work focuses on toleration theory, but this does not mean that his thinking is immune from criticism, even from those who celebrate his achievements. A collection of such criticisms can be found in Toleration, Power and the Right to Justification. Within this text, a range of scholars each present Forst with their questions and objections concerning his work on topics such as toleration, historical methodology, justice and reflexivity. Following this, Forst himself concludes the volume by providing a response to each of those who have contributed to the proceedings. While a case can be made that any criticism of Forst’s reflexive toleration could be filtered through to be a criticism of reflexive freedom of speech, in the interest of space and relevance, we shall focus on one particular chapter: John Horton’s ‘Tales of toleration’. This chapter holds particular significance as, among other concerns, it challenges Forst directly on the subject of freedom of speech. Horton argues: My principal claim is that the criteria of reciprocity and generality are insufficient … to show that only one interpretation of the requirements and boundaries of toleration is clearly preferable to another, unless one imports into these ideas either a lot more substantive philosophical and normative baggage. The consequence of doing that, though, is that any claim grounded in these concepts will also be a lot more controversial and contestable in ways that Forst’s argument had sought to circumvent. (Horton, 2020, p. 85)

Or, as Forst interprets Horton’s claim: Horton agrees with my analysis that toleration is a normatively dependent concept, but he raises serious doubts about my  – again: normative, not descriptive – suggestion that we should take the principle of reciprocal and general justification to be the right one for determining the space and limits of toleration. (Forst, 2020, p. 180)

Horton contends that Forst’s commitment to reflexivity leaves his theory of toleration without any real basis for actually upholding the underlying

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moral value—the principle of justification—which Forst wants to consider foundational. Horton notes how Forst differentiates between the ethical and the moral, wherein ethical positions are subject to reflexivity based on the foundational moral notion that humans are justificatory beings, observing that “much of the weight of Forst’s argument depends upon his principle of the right to justification and the robustness of the associated distinction between the ethical and moral” (Horton, 2020, p. 78). He wants to make clear that Forst’s insistence on reciprocity regarding ethical positions ultimately leaves his morality in constant question, affecting his entire political framework. Horton argues that Forst’s epistemological component “sets the bar … far too high”, ending in a situation where “there is nothing in the ideas of reciprocity and generality themselves” that can tell us about what conception of society is preferable over another (Horton, 2020, pp. 82–83). He notes, “Forst may claim that the balance of reasons points clearly in one direction, but others honestly disagree: and there lies the problems, both theoretical and political” (Horton, 2020, p. 83). Horton lays out what he means by these two problems as follows: The theoretical problem is what might be called the indeterminacy of reason, and unfortunately for Forst this infects the moral sphere as well as the ethical. Thus, moral/political principles, no less than ethical beliefs, are radically undetermined by the criteria of reciprocity and generality. (Horton, 2020, p. 83) The political problem is what is to be done in the face of this kind of disagreement. In short, it is unclear what, if anything, follows from Forst or anyone else being convinced that the reasons point in one direction, when others disagree, for reasons that are not demonstrably false, irrelevant or confused. (Horton, 2020, p. 83)

Horton addresses “the Rushdie affair”—wherein Muslims in Britain advocated for the censorship of Salman Rushdie’s book The Satanic Verses due to it containing what they considered to be offensive content as an example of this radical indeterminacy: [T]here is nothing in the ideas of reciprocity and generality themselves that can tell us whether a society of untrammelled freedom of expression in which, say, people can ridicule and abuse the deepest convictions of others

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is preferable to one in which such expression is significantly circumscribed, although at some cost to freedom of speech, on the grounds of offence, taste and civility. Nor is it clear how the ideas of reciprocity and generality might point to any particular compromise as the right balance of reasons. (Horton, 2020, p. 83)

According to Horton, this problem causes issues for how we interpret values and weigh them against each other when they come into conflict. He questions how we will determine the prioritisation of values such as freedom of speech, religious freedom and civility when they come into conflict, as they did in the case of The Satanic Verses: “In short, it seems to me a little more than an article of faith to believe that appeal to reciprocity and generality will be sufficient to resolve, or even significantly narrow the boundaries, with regard to most disputes about toleration” (Horton, 2020, p. 84). Horton (2020, p. 85) concludes from this that the only way to resolve this issue (as previously noted) is to import “into these ideas either a lot more substantive philosophical or normative baggage”. However, Horton (2020, p. 85) notes that for Forst, “[t]he consequence of doing that though, is that any claims grounded in these concepts will also be a lot more controversial and contestable in ways that Forst’s argument had sought to circumvent”. Forst (2020, p. 181) responds to Horton’s criticism by admitting that “the deontological difference might not always lead to one clear conclusion”, yet he believes it has “sharper contours than Horton thinks it has”. In regard to the Rushdie example provided by Horton, Forst claims that while some “expressions of criticism are intended to insult certain religions and thus are expressions of intolerance”, “[t]his is an intolerance of which we can and should be critical in civil society, but it is not one which should be banned by law” (Forst, 2020, p. 182). It justifies objection, but not prohibition. Forst stresses the work that reflexivity does in this example, noting how the call to ban ‘blasphemous’ material on grounds of civility and preventing offence is not consistent with his interpretation of reciprocity: For those who call for these bans do not want to leave the authority to determine what counts as ‘blasphemy’ with democratic law-makers or courts but want to reserve the definitional authority for themselves … If their views were to ground our common political and legal life, the door would be opened to a wide variety of arbitrary decisions about which kinds of speech or art have to be banned, since Muslim, Christian, Hindu and many other

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groups would define the limits of what can be tolerated according to their own limits. (Forst, 2020, pp. 182–183)

Forst (2020, p. 183) admits that his framework does not entirely prevent state censorship, “but that the threshold for determining what is intolerably insulting must be set very high and not be defined in partial terms”. In summary, Forst (2020, p. 183) acknowledges that his theory does contain “a certain ‘indeterminacy of reason’ when it comes to the application of the principle of reciprocal and general justification”, but he does “not consider this to be a reason for general doubts about the principle itself, which is meant to single out such special cases of intolerable intolerance”. He is making the case that while there is no underlying political ideology or vision in his conception of reflexivity, it still operates in a way that allows for the determination of what is morally acceptable or unacceptable in a free society of equals. Thus, such a society can proceed appropriately in how it deals with each conflict that arises and prioritise its values accordingly. As Forst observes: There are many other cases of intolerance  – say, of an anti-Muslim or an anti-Semitic nature – of which we should be critical; but here the limits of the tolerable must be a subject of discussion and action within civil society, not primarily of the legal state … there are examples of expressions of which the state might be wary but which it cannot justify a ban, because the result would be a political situation in which infringements of free speech would be a constant danger. (Forst, 2020, p. 183)

We can see here Forst himself defending freedom of speech through the framework of reflexivity, contending that allowing the censoring of speech to be determined by subjective or tradition-particular understandings of what should be tolerated without reciprocity will result in conflict over both the authority to enact censorship and the (lack of) limits of censorship. In contrast, Forst wants freedom of speech to be decided by the principle of justification, wherein all people must justify their claims to censor to others in a way that is reciprocally justifiable. Forst (2020, p. 188) agrees with Horton that there may be “grey zones of justification and application” that can complicate things, but he does “not think that this speaks against the use of and need for a principled, respect-based account”. With that said, and a philosophical foundation established, we can now look to see how reflexive freedom of speech would operate in application—the true test of the real world.

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References Bayle, P. (2005). A philosophical commentary on these words of the Gospel, Luke 14:23, “Compel Them to Come In, That My House May Be Full”. Liberty Fund. Bejan, T. M. (2020). What’s the use? Rainer Forst and the history of toleration. In R.  Forst (Ed.), Toleration, power, and the right to Justification. Manchester University Press. Forst, R. (2014). The right to justification. Columbia University Press. Forst, R. (2016). Toleration in conflict: Past and present. Cambridge University Press. Forst, R. (2020). The dialectics of toleration and the power of reason(s): Reply to my critics. In R.  Forst (Ed.), Toleration, power and the right to justification. Manchester University Press. Horton, J. (2020). Tales of toleration. In R. Forst (Ed.), Toleration, power and the right to justification. Manchester University Press. Locke, J. (2005). Two treatise of government and a letter concerning toleration. Digireads.com Publishing. Waldron, J. (2014). The harm in hate speech. Harvard University Press.

CHAPTER 7

Reflexive Freedom of Speech in Practice

The overall aim of this book is to provide a framework of freedom of speech that can ensure the most just outcomes for people within our contemporary society. The argument I have made within the preceding chapter is that this aim can be achieved by the application of a reflexive freedom of speech, grounded within a conception of reflexive toleration, as initially described by Rainer Forst. The purpose of this chapter is to take this understanding and apply it to a set of contemporary events and contexts that have called the limits and purpose of free speech into question. By engaging with these examples, I hope to test reflexive freedom of speech in its ability to provide a workable consensus among conflicting parties regarding the boundaries of acceptable speech when the lines become blurred. It is important to remember that the purpose of reflexive freedom of speech, like reflexive toleration, is not to resolve the overarching conflicts that are playing out between parties—the objection component remains—but to provide a framework through which the limits of acceptable speech can be understood by all parties as being reciprocally justifiable. I have organised the following examples into five categories for organisational purposes, but this does not necessarily preclude them from overlapping across multiple categories. These five categories have been chosen because they represent some of the most contested positions on freedom of speech within the contemporary milieu. They are as follows:

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 B. Walters, The Future of Free Speech, https://doi.org/10.1007/978-3-031-41356-8_7

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• Internet & Privacy • Protest • Art • The Scope of Ideas • Consequences of Speech Presented in no particular order, we will begin by following up on our discussion from Chap. 5. I will look to address how a reflexive freedom of speech would address both the issues of the internet/social media and privacy that I previously brought forward. I will address the idea of how regulation should operate in both of these cases to ensure that the right to justification is always upheld. Next up, we have protest. Protest, while being significant historically, remains an important category considering its continued relevance into the present moment. The ability to protest is seen as a key facet in the value of free speech and why it is so celebrated, especially within democracies. As noted by Nigel Warburton (2009, p. 2), “[w]ithout freedom to criticize and challenge those acting on our behalf, democracies may degenerate into tyrannies”. The United States, in particular, often portrays itself as being a nation supportive of protest, enshrining it as a right for all citizens within the First Amendment to the US Constitution. However, in recent times, the United States has seen criticism arise from both sides of the aisle over the concept of protesting—in regard to both who should be allowed to protest and in what manner. The appeal to freedom of speech is often invoked by both those seeking to protest and those who oppose them (whether they are those wishing to speak without censorship or those engaging in counterprotests themselves). Conversely, the value of freedom of speech is also often called into question in these interactions, with some seeking to deny others the right to speak based on what they view as moral grounds. It is from this that the concept of de-platforming/ no-platforming—“avoiding indirectly endorsing a speaker by providing them with a podium from which to deliver their views”—has reached a new level of prominence in mainstream discourse (Warburton, 2009, p. 41). From this, it is clear that any contemporary framework for freedom of speech must be able to untangle this web of invocations and criticisms and provide clarity on exactly how freedom of speech should function in these conflicts. Protest movements cover much ground in regard to the contemporary free speech debate, including the next category: art. Art has long been a

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factor in discussions surrounding free speech, especially considering its often-privileged role in our society as the medium through which “culture is transmitted and interrogated” (Warburton, 2009, p. 73). Art is also, in many ways, a very ambiguous term—being both very broad and at the same time very opaque in its definition. Questions as to whether ‘offensive’ works of art should be considered ‘art’ or whether art deserves its protected status in the first place are not new. Just as free speech can be co-opted in the service of extremist or fascist rhetoric in other forms, so too can it be utilised by those who wish to use the cover of art to disseminate harmful or offensive speech. The framework responsible for the limits of speech must be accountable for any instances of art, including symbols, entertainment, etc. The next category is the scope of ideas, which broadly comprises the question of what ideas are ‘allowed’ to be a part of the discourse in the contemporary context and whether or not there are acceptable forums for this discourse to take place. This question is currently quite prominent, especially in the alternative media landscape. The reaction to what critics have labelled ‘political correctness’ has resulted in what has become known as the ‘battle of ideas’ being a top priority among public intellectuals and political commentators. This includes the Intellectual Dark Web, which we dealt with in Chap. 3. Recall that this is a group whose sole professed uniting feature is a dedication to ensuring the ability to discuss any subject, regardless of the content. This will be an important and interesting test for the reflexive freedom of speech framework, as for many fans, these figures are revered as the modern defenders of free speech. The final category to be discussed concerns the consequences of speech. Adhering to reflexive freedom of speech means not just reaching a mutual justification of the standards of acceptable speech between parties, it can also extend to ensure that there is a reciprocal relationship governing the consequences of pushing or breaking the limits of acceptable speech. This requires a closer look at context, intention and impact when judging the nature and outcome of any speech act. The punishment for breaching the limits of speech also needs to be assessed on a case-by-case basis. In this way, we can address whether the appropriate response should include factors such as loss of employment or other forms of shunning and life destabilisation often brought about through (organised or unorganised) campaigns of public shaming. It is important in any framework for freedom of speech—but especially for one based on reflexive toleration—that the consequences of breaching the limits of acceptable speech adhere to

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the same standard of justice that governs the initial framework. At the conclusion of this chapter, there should be an overall sense of clarity about how reflexive freedom of speech operates in practice within the real world.

Internet and Privacy The lax speech regulations of online platforms coupled with the willingness of certain actors to push such regulations to their limit have allowed for the emergence of both individuals and groups who seek to abuse the ideal of freedom of speech to spread their message of hate. The problem is exacerbated by the ever-increasing scope of influence that a small group of corporations have over some of the most widely used channels of communication in human history—corporations that have the ability to influence the reality of all users who engage with their platform. The question being asked in this debate is whether or to what extent private interests should have control over their own platforms, considering the extent to which they have grown. As noted by Timothy Garton Ash (2016, p. 1), “[w]ere each user of Facebook to be counted as an inhabitant, Facebook would have a larger population than China”. As these platforms grow in usage and become increasingly ingrained in our experience of everyday life, it becomes increasingly difficult to live without existing as a part of the social media community. Because of this, it has become increasingly more difficult to reasonably avoid social media should you find aspects of the platform(s) to be offensive or harmful. As social media pushes further towards universality, the responsibility of its private ownership is faced with an increasing responsibility toward its users regarding the regulation of speech on their platform(s). The question of increased regulation, however, comes with its own concerns. Allowing corporations to remain in control of their own regulatory policy and oversight could lead to a precedent being set that would allow corporations to abuse such regulations for their own ends. As George Hawley (2019, p. 206) writes: [P]rivate censorship raises additional concerns. The Internet is now one of the world’s main channels of communication. We can reasonably question whether it is wise to allow giant corporations like Google or Amazon to be the primary gatekeepers to speech. Although antiracists on the left may applaud these entities for their efforts to crack down on hate speech, it is worth noting that this same tactic can be used on other forms of speech,

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including left-wing speech, with a similar lack of public oversight. We may not wish to set the precedent that corporations get to determine what kinds of speech can appear online.

Realising this concern, David Kaye (2019, p. 115) argues that companies need to move towards accepting “transparency, user agency, and stronger diversity” if they are to remain in control of regulating speech on their respective platforms. Kaye provides a list of policies/guidelines that could be adopted to prevent the arbitration of acceptable speech from being monopolised by private companies: • Decentralised decision-making – The need for this emerges from the assessment that “companies are not built to moderate content at a global scale”—the result of which sees them “alienate and flatten cultures” when they are required to operate in such a fashion (Kaye, 2019, p.  117). Kaye’s solution is to implement a system that sees problems over speech dealt with by “multi-stakeholder councils” with special “desk officers” based in each country to address each problem in a more context-focused operation that avoids generalised policies that are ill-suited across all parties. (Kaye, 2019, p. 118) • Human rights standards as content moderation norms—Kaye’s (2019, p. 119) claim here is that “companies should make human rights law the explicit standard underlying their content moderation”. As these are global companies, he puts forward international law as the standard bearer for such standards. The idea is that each user’s rights to “seek, receive, and impart information and ideas of all kinds, regardless of frontiers” are protected in their usage of the platform just as seriously as they would be protected by the courts. (Kaye, 2019, p. 119) • Radically better transparency—Greater transparency from companies would allow users to better understand whether they want to “opt into the platforms and how to behave on them if they do” (Kaye, 2019, p.  121). This requires transparency from companies regarding their policy choices and content standards, as well as the reasoning behind any action they take against users—with a right to appeal decisions. • Industry-wide oversight and accountability—This includes the legislation of company transparency, ensuring that corporations are accountable to the governments of nations in which they choose to

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operate, and support for freedom of expression wherever possible (through supporting concepts such as net neutrality). • Invest in the development of a publicly owned social media platform—This idea should work in the same capacity as how the public broadcaster worked in the previous media era—becoming an alternative to private corporations. The ideal outcome would be an online media outlet that is free of any corporate or profit-based influence, allowing for more trustworthy content. A key facet of Kaye’s proposed solutions is the return of control over the limits of acceptable speech from corporations to the people. This approach is concordant with that dictated by a framework of reflexive freedom of speech. Reflexive freedom of speech contends that the limits of speech should only ever be decided by the standards of reciprocity between conflicting parties based on a principle of a right to justification. Having the limits of speech dictated by a singular entity (or group of entities) is in direct opposition to this ideal. This notion, in conjunction with the increasing universal nature of social media platforms, requires that these platforms submit to regulating speech via the tenets of reflexive freedom of speech. This would ensure that any material that breaches the limits of reflexive toleration would be removed from the platform(s). Similar to private powers, so must public powers be held to account for their surveillance technologies. There are contexts under which such surveillance could be deemed justifiable, but this must be dictated by a reflexive principle of justification. Any action taken by the state to invade the privacy of one of its citizens must be legitimate according to the normative standard of the right to justification, which upholds the reciprocal freedoms of individual citizens. Thus, any breach of privacy by the state must be accepted as being reciprocally justifiable by all citizens. Any alteration by the state to this outline is a breach of toleration and should not be tolerated by the people. Considering this, we can understand reflexive freedom of speech to operate in regard to privacy as follows: No person should be compelled to release their private information or otherwise expose themselves publicly unless it is done in accordance with the principle of justification, based on reciprocity and generality. Therefore, the limits of individual privacy are dictated by reciprocal justice within a given society, wherein there is universal, mutual respect for the right to justification for all involved. Furthermore, the validity of whether a breach of privacy is necessary is

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determined through the reciprocal relationship of all those within the society and not between, for example, a particular citizen (or group) and their government. This holds that any breach of privacy made by an institution (such as a government) must be reciprocally justifiable to all members of the given society, as if it were their own privacy being violated.

Protest The right to protest is one taken very seriously in Western democracies— especially the United States, which enshrines “the right of the people peaceably to assemble” within the First Amendment. However, in recent times, the United States has seen great debate over the concept of protest, with critics ranging across the political spectrum questioning how the right to protest should be interpreted. The question of whether free speech gives you the unilateral right to protest in the format you see fit is a complex one—especially when considering that in some cases such protests may interfere with the free speech rights of others. One example of this complexity playing out in the current moment is the debate over the de-platforming (or no-platforming) of controversial speakers, which is occurring in both online (social media) and offline spaces (predominantly universities). This is not necessarily as easy to untangle as some may posit. Mill’s epistemic argument for freedom of speech often serves as a common defence for those who seek to limit no-­ platform-­based censorship. As Neil Levy (2019, p. 489) writes: “[A]dvocates of open speech cite mainly epistemic considerations in its defense. They justify exposure to controversial views, even repugnant views, on the basis that directly or indirectly, the exposure tends to lead their audience to have better justified beliefs”. Separate from the criticisms of the epistemic justification I made earlier (see Chaps. 2 and 3), this idea is challenged by Levy, who argues that providing a platform for ‘bad speech’ can serve a dangerous legitimising function. He writes that allowing people a platform for bad speech “is a signal that those who issue the invitation consider the person worthy of a respectful hearing. It is a signal that the inviters consider the speaker sufficiently expert, or sufficiently representative of expertise to have an opinion on that topic that should be taken into consideration” (Levy, 2019, pp.  495–496). He then follows this up in arguing that because “[b]ad speech presents its audience with genuine evidence … that retains evidential value for them even if and even after it is rebutted or balanced”, there

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are therefore occasions for denying speakers a platform in certain contexts (Levy, 2019, p. 491). A somewhat similar—yet perhaps a stronger and narrower—version of this argument is also put forward by Robert Mark Simpson and Amia Srinivasan. Here, Simpson and Srinivasan take the idea of ‘platforming someone as validation’ and push it further. Following the principles of academic freedom promoted by Robert Post, they defend no-platforming on the idea that the university (as the location for many de-platformings) should be treated as a separate entity from the ‘marketplace of ideas’. Simpson and Srinivasan argue the separation is necessary to, first, “accord special protection to certain kinds of speech by those responsible for teaching and research” in order to insulate them from any external compromising factors such as “management, society in general, or – especially in the case of state universities  – the government” (Simpson & Srinivasan, 2018, p.  195). Second, echoing Levy’s position above, they argue that “communicative norms and practices of universities also give recognized disciplinary experts – that is, academic faculty – various kinds of control over the speech of others, as it is needed to uphold the intellectual rigors of, and thus promote the epistemic aims of, their disciplines” (Simpson & Srinivasan, 2018, p. 195). To explain this, they comment: “In the public square we tolerate the speech of flat-earth cranks, shills paid to undermine climate science, and revisionist historians who espouse conspiratorial misreadings of evidence … But such people aren’t owed an opportunity to teach History 101 or publish in scientific journals” (Simpson & Srinivasan, 2018, pp. 195–196). You may find these criticisms from Levy, Simpson and Srinivasan somewhat persuasive, yet we must remember that they still exist within the paradigm of Millian liberalism. This entails that any criticism of Mill’s epistemic argument I made earlier can be used to undermine both the arguments for and against no-platforming utilising this framework of justification. For this reason, it is important that we further address the issues of no-platforming and a response from the reflexive freedom of speech framework I have championed. One example that serves as a strong case study for what I am arguing for is the kneeling protest conducted by the now-former NFL player, Colin Kaepernick. On September 1st 2016, NFL player Colin Kaepernick (along with teammate Eric Reid) decided to kneel instead of stand during the playing of the national anthem, which is standard practice before the commencement of an NFL game. The gesture was meant as a symbol of

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protest against American racial injustice following in the wake of the number of cases of unarmed black men being shot dead by police in the United States. However, the result of his protest caused a backlash that ended his NFL career. Kaepernick actually began his protest when he sat for the anthem on August 26th. The New York Times quotes him saying at the time, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color” (Mather, 2019). While his protest did not receive enormous attention at this time, there were some who questioned his decision to use the anthem in his protest, and a narrative formed that Kaepernick’s protest was in fact anti-military and, as a result, anti-American. In an effort to combat this narrative, Kaepernick (and Reid) decided to kneel instead of sitting with the idea that it would be a more respectful gesture. Kaepernick wanted it clear that he was not anti-American, stating, “I love America. I love people. That’s why I’m doing this. I want to help make America better” (Mather, 2019). However, the response from fans and the NFL itself was largely negative, believing that the anthem is an inappropriate place to take such political actions. Kaepernick continued to protest throughout the season and inspired many other American athletes to do the same. At the end of the season, Kaepernick was unable to find a new team after he opted out of his contract with the San Francisco 49ers and has not played since. In September 2017, US President Donald Trump weighed in on Twitter stating that: If a player wants the privilege of making millions of dollars in the NFL, or other leagues, he or she should not be allowed to disrespect … our Great American Flag (or Country) and should stand for the National Anthem. If not, YOU’RE FIRED. Find something else to do! (Mather, 2019)

Following this, in May 2018, the NFL owners passed new rules that players would be punished for kneeling during the playing of the anthem. This de-platforming of NFL players wanting to protest against police brutality and racial injustice continued until June 2020, when mounting pressure following the death of George Floyd at the hands of police in May caused them to reverse their position. So, how does reflexive freedom of speech deal with such a case? As a starting point, reflexive freedom of speech deems the concept of protest

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legitimate. If we are to agree that as autonomous, dignified, justificatory beings, we should remain as free from coercion as a reflexive standard of toleration will allow, then it stands to reason that people should be allowed to speak out against any circumstance that they interpret as coercive. As all parties want to remain free from coercion, all parties can agree that the right to speak out against such coercion is reciprocally justifiable. Let us then consider specifically the context of Kaepernick’s kneeling protest. In my assessment, there are two relevant factors to consider here: first, it is very public, subjecting all those in stadium attendance and potentially the entire NFL television viewership to his act of protest; and second, his protest involved passively ‘resisting’ during a ritual of national unity and solidarity. Those who disagree with Kaepernick’s actions are then ostensibly claiming that this passive act of defiance is causing potential harm (or at least offence) to all those who bear witness to it and therefore should be censored. This is fair enough—reflexive freedom of speech does not deny people their opinions; it demands reasons from them when they choose to act on said opinions. However, I believe that reflexive freedom of speech would allow Kaepernick’s protest to stand. Denying Kaepernick’s right to protest in this context would mean allowing him the ability to demand that his detractors also forgo their right to protest in similar contexts. What I mean to say is this: taking away someone’s right to peaceably protest means forfeiting one’s own right to peaceably protest—this is what it means to abide by the reciprocity demanded by the right to justification. Now, if the protest is violent or the subject matter being protesting for/against results in a breach of this reciprocity, then such actions should not be tolerated. For example, if one were to protest against the denouncement or suppression of white supremacy in our society, reflexive freedom of speech would deem this protest unjust and legitimately subject to censorship. The reason for this is that one cannot claim a right to justification specifically to deny it to others (as the white supremacist would no doubt deny it to minority groups). This is an obvious departure from the epistemic model of free speech, which has tended to grant much more leniency to public protests supportive of such anti-human sentiments. Once again, I would like to reiterate here that reflexive freedom of speech does not deny anyone a right to an opinion, only the arbitrary ability to dominate others.

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Art The relationship between art and free speech is historically one of tension. Transgressive messages can often be conveyed through art, sometimes leading to a discussion as to whether what is being presented/expressed should even be classified as art in the first place. The reason for this is that art is often given a special classification within society as something that should be immune from censorship. As Warburton (2009, p. 73) explains: Is there a special case that can be made about the arts that exempts them from censorship? One response is that artists should be immune from censorship because of the seriousness of their attempts to engage with the human condition and because of the literary or artistic qualities of interpretation of events that complicate the experience of such works. In our culture we rightly privilege the role of artist because it is through art that culture is transmitted and interrogated.

However, there are many who stand in opposition to this idea, seeking to censor any form of artistic expression that they believe to be harmful or offensive. The first of two examples we will discuss to explore the relationship between art and reflexive freedom of speech is the removal of certain monuments from public spaces due to their alleged connections to racism or other forms of oppression. The monuments can often include elaborate artistic renderings of historical figures associated with the confederacy or colonialism. The removal of a Robert E. Lee statue from Charlottesville, Virginia, is just one instance of this activity—a trend that has gained momentum across the southern United States. Critics of the removal argue that by removing these monuments, we are engaging in an act of erasure, a historical revision that denies the reality of how the United States was built. Those in favour of removal argue that removing Confederate statues, in many cases erected several decades after the Civil War, is a way to reject the celebration of what is ultimately a history of white supremacy. The question needing to be answered then could be formulated as a question of whether it should be acceptable to publicly display art that for many people actively symbolises racism and oppression. The second example concerning art is the increasing criticism being levelled at those who utilise potentially offensive material for the purposes of entertainment, namely, in this instance, comedians who joke about

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material that could be considered harmful or insensitive. There are many examples of this to choose from which would serve our purposes here. While not the most recent, I have decided to go with a somewhat older incident involving the comedian Ricky Gervais, who was rebuked for his use of a ‘rape joke’ in 2009. 1 Here is a transcript of the joke: I’ve done it once, I’m not proud of it in the slightest. I’m fucking ashamed of it. I wasn’t drunk, I was over the limit. That was Christmas and I took the car out and I knew I shouldn’t. I knew at the time I shouldn’t be in the car. But I learned my lesson ’cos I nearly killed an old woman. In the end I didn’t kill her. In the end, I just raped her. But as I say nothing came of it ’cos luckily, thousand to one shot I know, she had Alzheimer’s. Yeah, not a credible witness. (Weaver & Morgan, 2017)

Gervais attempted to explain/justify the joke online: “The joke clearly revolves around the misdirection in the term ‘nearly killed’, suggesting narrowly avoided. But, as it turns out, ‘nearly killed’ means something much, much worse. A big taboo, but comically justified I feel” (Weaver & Morgan, 2017). One critic who has spoken out about the problematic nature of these types of jokes is the feminist writer Clementine Ford. Ford writes in her book Boys Will Be Boys a scathing critique of those who would make jokes concerning the topic of rape in a blatant, transgressive fashion. Her argument centres around her claim that “[r]ape is in the room”, a statement that conveys that in any space there will be those in some way affected by rape or also perpetrators of rape (Ford, 2018, p. 266). For Ford, the wilful use of rape material in comedic routines is a direct affront to the experiences of rape victims: “The wilful, arrogant dismissal of the relevance of women’s experiences and feelings in the world is at the crux of why ‘rape jokes’ aren’t actually a sacrosanct domain in which men can play at cutely shocking an audience while growing their own reputations” (Ford, 2018, p. 249). Ford also rejects the notion that the curtailing of rape material is a censoring act that crosses the line, specifically in regard to the free speech of comedians:

1  Gervais would find himself the centre of controversy on multiple occasions since, including his comedic material surrounding the trans community in 2022.

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Remember, when the survivors of sexual violence object to their trauma being used as a meeting ground for male comics to ‘fall and test out their material’, they’re accused of enforcing whiny safe space bullshit. But when those same men are given boundaries of human decency, it’s considered an assault on their fundamental right to free speech which they naturally feel entitled to test out in a ‘safe space’ of a supportive comedy room. (Ford, 2018, p. 271)

Considering all this, how would a reflexive freedom of speech handle these examples of calls for censorship, both in regard to the removal of Confederate monuments and the use of potentially harmful/offensive material in comedy? First, regarding the removal of controversial monuments from public spaces, reflexive freedom of speech would agree with this practice. The key determining factors in this equation are that the monuments are in a public space and that they represent a denial of humanity to a certain portion of the population. Their presence in public spaces is grounds for a reasonable rejection of toleration, considering how they breach the element of mutual respect guaranteed by the principle of justification. However, importantly, this does not mean that such monuments should necessarily be destroyed, nor should the history they represent be made inaccessible. One possible solution to this problem would be to display these monuments in a museum where they can be exhibited and appreciated for their artistic and historical context without tacitly serving as a public endorsement or celebration of discrimination. Reflexive freedom of speech would allow for the toleration of such things in this context. Second, in regard to the use of controversial material in comedy, the argument is much the same. As long as the comedy is taking place in a setting that can be reasonably avoided by those who do not wish to be exposed to it, then it should be allowed to occur. Reflexive freedom of speech respects that one individual or faction cannot have control over what another is entertained by, provided it does not breach the reciprocally justified limits of reflexive toleration. Interestingly, Ford appears to understand this line of thought when discussing comedic material of other extreme categories. This includes satirical/comedic comments she herself has made, including tweeting “all men must die” and “I won’t stop until all men are fired… into the sun!” (Ford, 2018, pp. 275–277). She also gives her blessing to any rape joke material that focuses on subverting the “stereotypes and ideas that abound in rape culture” (Ford, 2018, p. 277).

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The Scope of Ideas The shifting limits of seemingly acceptable speech caused by cultural changes such as the redefinition of harm (see Chap. 4) have left some parties questioning whether the regulation of speech regarding taboo topics could be taken too far, hindering both the ability to speak uncomfortable truths and the capacity for dissenting voices to be heard. As discussed in Chap. 3, the Intellectual Dark Web views themselves to be philosophically descendent of the classical liberal tradition, arguing for a framework of freedom of speech that allows them the freedom to discuss transgressive ideas without restriction. However, as we have seen, the IDW often appear to utilise a liberal framework to expressly deny freedom to others. The primary concern of the IDW is that the new standards of discourse brought about by what they view as an overbearing PC culture will result in an inability to have the necessary discussions required for the progression of humanity. Their fear is that any speech that involves the discussion of ‘harsh truths’ will immediately be subject to censorship and reprisal against the speaker—even if the speech consists of potentially verifiable facts. They view this outcome as being part of a broader PC agenda, one that is based on prioritising protecting individuals from offensive material over acknowledging the truth in any given situation. The concern raised by critics of the IDW, such as the late online commentator and author Michael Brooks (2020, p. 2), is that the IDW “show a stunning lack of historical awareness”, preferring to attempt to “naturalize and mythologize social problems” (Brooks, 2020, p. 11), leading to a situation where they often find themselves being labelled as being racist, misogynist or transphobic depending on the discussion. A major example of this is the conversation that took place between prominent IDW affiliate Sam Harris and controversial author Charles Murray, as well as the resulting debate about the conversation between Harris and journalist Ezra Klein. Murray coauthored (with Richard Herrnstein) The Bell Curve in 1994, a book that many took to be an attempt at justifying racial prejudice through its interpretation of IQ data across racial divides. Brooks (2020, p. 34), for one, argues that the hypothesis of this book—“to justify extreme inequality of all kinds as a result of natural forces”—is “in many respects the ultimate example of the intellectually limiting and morally damaging effects of naturalizing instead of historicizing”.

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Critics of the book claim that Murray and Herrnstein failed to pay any attention to the role that the historical oppression of minorities has had (and continues to have) in the development of IQ. As Turkheimer et al. (2017) explain: To what extent is the observed difference in cognitive function a reflection of the myriad ways black people in the US experience historical, social, and economic disadvantage — earning less money, suffering more from chronic disease, dying younger, living in more dangerous and chaotic neighborhoods, attending inferior schools?

Because of this, Murray’s views on biological race differences are (rightly) interpreted as being dangerous by detractors—such as Klein—as they can be used to support political agendas that oppress certain racial groups. Klein (2018a) notes that this political agenda is “in Murray’s case, an end to programs meant to redress racial inequality”. Because of the backlash brought on by the release of The Bell Curve, Murray’s career was left in disarray. He was dismissed by many as being at best a fringe character and at worst a racist. He was treated by the academic and intellectual community as being ‘radioactive’, including initially by Harris himself, who remarks that there was at least one project he rejected to be a part of because Murray was attached to it. The controversy over Murray was reignited when Harris decided to have Murray on his Waking Up podcast in April 2017 (now rebranded as the Making Sense podcast). Within a nearly two-and-a-half-hour discussion in the episode titled ‘Forbidden Knowledge’, Harris attempts to defend Murray as a victim of a culture of political correctness. Brooks (2020, p. 35) observes: Sam Harris decided that the obvious explanation is wrong and Murray is right about all of this – that just as he himself is an unfair victim of mischaracterization because of his “philosopher’s penchant” for exploring “corner cases,” Murray is an unfairly maligned researcher who is simply following the empirical evidence wherever it may lead.

Harris’ own version of events somewhat confirms Brooks’ assessment: While I have very little interest in IQ and actually zero interest in racial differences in IQ, I invited Murray on my podcast, because he had recently been de-platformed at Middlebury College. He and his host were actually

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assaulted as they left the auditorium. In my view, this seemed yet another instance of kind of a moral panic that we were seeing on college campuses. It caused me to take an interest in Murray that I hadn’t previously had. I had never read The Bell Curve, because I thought it was just … It must be just racist trash, because I assumed that where there was all that smoke, there must be fire. I hadn’t paid attention to Murray. When I did read the book and did some more research on him, I came to think that he was probably the most unfairly maligned person in my lifetime. That doesn’t really run the risk of being much of an exaggeration there. (Klein, 2018a)

Harris’ argument against the critics is that Murray’s detractors disagree with him on a purely ideological basis and ignore the science in Murray’s claims. As Brooks (2020, p. 36) notes, “[h]e takes it for granted that the evidence is on Murray’s side, and that everyone who disagrees is just too afraid of being called a racist”. Here is the argument in Harris’ own words: People don’t want to hear that a person’s intelligence is in large measure due to his or her genes and there seems to be very little we can do environmentally to increase a person’s intelligence even in childhood. It’s not that the environment doesn’t matter, but genes appear to be 50 to 80 percent of the story. People don’t want to hear this. And they certainly don’t want to hear that average IQ differs across races and ethnic groups. Now, for better or worse, these are all facts. In fact, there is almost nothing in psychological science for which there is more evidence than these claims. About IQ, about the validity of testing for it, about its importance in the real world, about its heritability, and about its differential expression in different populations. Again, this is what a dispassionate look at [what] decades of research suggest. Unfortunately, the controversy over The Bell Curve did not result from legitimate, good-faith criticisms of its major claims. Rather, it was the product of a politically correct moral panic that totally engulfed Murray’s career and has yet to release him. (Klein, 2018b)

While Harris does find himself defending an extremely controversial and scientifically unaccepted view on race and IQ, this is (strangely) an externality of his primary concern: defending Murray’s right to research and publish controversial material as a function of freedom of speech. Harris is afraid that if the regulation of free speech is allowed to crossover into the realm of scientific research, then we are inhabiting our ability both to discover truths about ourselves and our world and to live in a world that

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acknowledges the reality of these truths. Here is a lengthy quotation from Harris’ discussion with Klein highlighting an example of how he views this issue could become a problem for humanity, moving forward: I think it was three years ago, or four years ago. I think it was 2014 where there were some, there were reports about Neanderthal DNA. I think it’s David Reich whose op-ed in the New York Times kicked off our latest skirmish, I think it’s based on his work. It was found that most human beings are walking around with around 2.7 percent Neanderthal DNA.  At the time, but it was found that the only people who don’t have Neanderthal DNA are black people, people who directly descend with some isolation from Africa, from the rest of the human community. At the time I tweeted, this is now 2014, I tweeted, “Attention all racists, you are right. We are special, or whites are special. We’re part Neanderthal. Blacks are just human.” It just was a trolling of the world’s racists. Now the fact that I tweeted that should give you as a journalist some indication of what I think about white supremacy. But what if the data had broken the other way? What if the only people on Earth, who were part neanderthal, were black? What then? What would have happened to anyone who reported those data? What would’ve, would that have been an example of trafficking in the most deeply harmful tropes? It’s just pure good luck it broke the other way. And yet, this is the kind of thing that will keep coming at us. This is the problem that you appear to be unprepared for, okay? It’s a problem that you, in the face of which you appear to be willing to believe people who are not speaking with real integrity about data, because it serves political ends. You appear to be willing to help destroy people’s reputation who take the other side of these conversations. The problem is this: We know that we will discover things about populations that can appear invidious and appear politically inconvenient. And we don’t know when we will discover them. (Klein, 2018a)

Both Klein and Brooks disagree with Harris’ assessment of the situation. Klein believes Harris to be misrepresenting the case as a “mere matter of bad faith”, stating his view as follows: Research shows measurable consequences on IQ and a host of other outcomes from the kind of violence and discrimination America inflicted for centuries against African Americans. In a vicious cycle, the consequences of that violence have pushed forward the underlying attitudes that allow discriminatory policies to flourish and justify the racially unequal world we’ve built.

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To put this simply: You cannot discuss this topic without discussing its toxic past and the way that shapes our present. (Klein, 2018b)

Brooks agrees with Klein, noting that studies conducted by those (such as the geneticist Eric Turkheimer) show that genes play a much less significant role in determining IQ compared to environmental factors. He also brings up the work of James Flynn, who “undermined biological determinism by demonstrating that IQ across populations has gone up as societies have grown more complex” (Brooks, 2020, p. 39). As a result, Klein believes the rhetoric of Harris in framing this debate as an issue of political correctness is directly contributing to an environment where “longstanding, deeply harmful tropes are being rehabilitated”, leading to a “justification for cutting social programs and giving up on efforts to foster racial equality” (Klein, 2018b). So, where does reflexive freedom of speech sit here? I would argue that the framework would allow for Harris’ discussion with Murray to take place. As the discussion was in podcast format, anyone who would potentially be offended by the material would have the option to avoid exposing themselves to the content within. However, reflexive freedom of speech also supports the right for detractors such as Klein and Brooks to criticise the conversation as something that promotes racism and ignores the historical and social realities of the subject matter. Under a framework of reflexive freedom of speech, Harris is entitled to make the arguments he wants to make (within the limits of reciprocity), but he is not entitled to anyone’s agreement with or support for his claims. Furthermore, if those in the intellectual community choose not to associate with either Harris or Murray due to these disagreements, that is their prerogative. The only time this becomes an issue is if Harris or Murray is de-platformed—people can remove themselves from an event, but they cannot remove someone else because of an ethical disagreement. Thus, if Harris and/or Murray choose to make more podcasts together or appear at events together, as long as people have the option of avoiding their speech, they should not be banned or otherwise silenced from making their arguments (provided they also remain within the limits of reflexive toleration). The freedom to discuss ‘uncomfortable truths’ remains available, provided that there is no denial of anyone’s right to justification. Similarly, the ability to criticise such claims of truth, the methods of their discovery, and the impacts of their discovery must then also remain available under the same conditions.

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The Consequences of Speech The last category to be discussed relates to the notion of how perceived breaches of the limits of acceptable speech are punished or otherwise reprimanded in our contemporary context. As noted in Chap. 4, the consequences for breaching these limits can often be severe. While most of the pressure for these consequences arguably comes from the left, there are still those on that side of politics who reject “the misguided attempts of the ultra-woke to improve society by scolding people for holding imperfect ideas in their heads” (Brooks, 2020, p. 12). Critics, such as Brooks, argue that the fascination of such ‘ultra-woke’ factions with shaming and cancel culture only leads to negative social outcomes in the long term. One of the most pertinent points for discussion in this context is the concept of whether a person should have their livelihood taken from them due to comments they have made publicly or that have been publicly revealed. As corporations (and in some cases, state departments) seek to avoid any sense of scandal that may damage their branding, employees have become at risk of losing their employment based on something they have said—even if that something has taken place outside of the workplace/working hours. In some cases, this firing is justified by the use of a ‘code of conduct’ or other forms of employment contracts that seek to protect the brand from harm. Considering the potential impact this has on freedom of speech and given people’s financial dependency on their gainful employment, this leads us to ask how or whether such contracts should be utilised by employers to the extent that they are now. One example that highlights this conundrum is the high court case of Michaela Banerji, who in 2013 was fired from her position at the Australian Department of Immigration and Border Protection. Banerji was let go from the department due to being discovered as the person behind the anonymous Twitter profile ‘LaLegale’, which frequently posted opinions critical of the Australian Government and its immigration policies. The justification used for her sacking was that she had breached the Australian Public Service (APS) Code of Conduct, following an internal investigation linking her to the Twitter account. Banerji appealed the decision at the Administrative Appeals Tribunal, which ruled in her favour, finding that “her sacking had impeded her implied right to freedom of political communication” (Byrne, 2019). However, in 2019, the High Court of Australia ruled against this decision, contending that “that the APS code was proportionate to its purpose of maintaining an apolitical public

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service” (Byrne, 2019). This decision left Banerji without a chance for compensation. While Australia does not have a First Amendment in the same manner as the United States, it does have implied freedom of political communication guaranteed in the Constitution. It is notable then that Banerji wrote “from a private device and mostly outside of work hours” (Byrne, 2019). Her posts were also entirely made under her LaLegale nom de plume, concealing her identity along with any connection she had to being a public servant. Despite this, the High Court found that Banerji has breached the APS guidelines, specifically that APS employees must take reasonable steps to avoid any conflicts of interest with their status as an APS employee and that they must also seek to uphold and maintain the integrity of the APS. Critics of the decision against Banerji argue that the decision—which has repercussions for all Australian public servants—is an example of Government overreach, which is both “bad for the public sector and bad for our democracy” (Byrne, 2019). Another interesting example that saw an individual lose their employment over something they had said online, outside of working hours, is the case of Israel Folau. The Australian rugby player was expelled from Rugby Australia in 2019 after posting on his personal social media that “hell awaits” gay people and various other groups (BBC News, 2019). Folau faced widespread condemnation for his post, which saw him removed by Rugby Australia, rendered unable to play, for breaching the players’ code of conduct. Folau responded to his sacking by claiming that Rugby Australia had breached his religious freedom and sought to take legal action against them. To cover his legal fees, Folau launched a crowdfunding campaign on the crowdfunding website GoFundMe. Folau’s campaign received over $650,000 in donations before it was terminated by the website operator in response to public pressure, refunding all contributions. In analysing these examples through a framework of reflexive freedom of speech, a pattern emerges despite the differences between the cases (including their political affiliations). Across the two examples, I contend that, in this context, reflexive freedom of speech dictates that codes of conduct directing employee behaviour that extend beyond the direct time and place of employment are illegitimate. These codes of conduct breach the reciprocity of reflexive freedom of speech due to their nature of trying to control employees beyond the scope of what would be considered reciprocally justifiable between all parties. In our current economic

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context, if an employer provides work to an employee, then it is reasonable that the employee agrees to conduct themselves according to the wishes of the employer while at work (provided these wishes do not breach reflexive toleration themselves). However, to suggest that employers should have control over the lives of their employees outside of work is a clear-cut overreach that breaches reflexive toleration. Such conditions are both censorious and unjust. In regard to Banerji and Folau, then, under this reading, they both should have been able to keep their jobs. However, a very strong case could be made that if Banerji or Folau unapologetically expressed themselves in the same way during working hours (such as Folau using homophobic slurs towards a player during a rugby game), then it is possible that their jobs could be taken from them. Ultimately, if reflexive freedom of speech is to be the framework with which we approach conflicts over speech within our contemporary society, then it must be shown to be able to handle a wide array of contemporary cases wherein free speech is considered controversial. As with Forst’s reflexive toleration, reflexive freedom of speech works not by resolving conflict between parties but by finding the standard of reciprocal justification between the parties, allowing the most just and universal circumstances for freedom of speech. As with any aspect of toleration, concessions will need to be made on both sides (this is the nature of the objection component of toleration), and sometimes we will be required to tolerate instances of speech that we would prefer not to. The examples presented throughout this chapter attempted to display an array of political views and how reflexive freedom of speech operates consistently on a principle of reciprocity and justice, regardless of the given context. The understanding gained from this should help clarify why, moving forward, reflexive freedom of speech is the best framework for justifying freedom of speech within our contemporary society.

References BBC News. (2019, June 21). Israel Folau: Sacked rugby player in anti-gay row asks for donations. Retrieved from BBC News: https://www.bbc.com/news/ world-­australia-­48714601 Brooks, M. (2020). Against the web. Zero Books. Byrne, E. (2019). Public servant loses free speech High Court case over tweets criticising government policies. ABC News. Retrieved June 26, 2020, from https://www.abc.net.au/news/2019-­08-­07/high-­court-­free-­speech-­public­service%2D%2Dbanerji-­decision/11377990

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Ford, C. (2018). Boys will be boys. Allen & Unwin. Garton Ash, T. (2016). Free speech: Ten principles for a connected world. Atlantic Books. Hawley, G. (2019). The alt-right: What everyone needs to know. Oxford University Press. Kaye, D. (2019). Speech police: The global struggle to govern the internet. Columbia Global Reports. Klein, E. (2018a). The Sam Harris debate. Vox. Retrieved June 25, 2020, from https://www.vox.com/2018a/4/9/17210248/sam-­harris-­ezra-­klein-­charles-­murray­transcript-­podcast Klein, E. (2018b). Sam Harris, Charles Murray, and the allure of race science. Vox. Retrieved June 25, 2020, from https://www.vox.com/policy-­and-­politics/ 2018b/3/27/15695060/sam-­h arris-­c harles-­m urray-­r ace-­i q-­f orbidden-­ knowledge-­podcast-­bell-­curve Levy, N. (2019). No-platforming and higher-order evidence, or anti-anti-no-­ platforming. Journal of the American Philosophical Association, 5(4), 487–502. Mather, V. (2019, February 15). A timeline of Colin Kaepernick vs. the N.F.L. The New  York Times. Retrieved July 8, 2019, from https://www.nytimes. com/2019/02/15/sports/nfl-­colin-­kaepernick-­protests-­timeline.html Simpson, R.  M., & Srinivasan, A. (2018). No platforming. In J.  Lackey (Ed.), Academic freedom. Oxford Scholarship Online. Turkheimer, E., Paige Harden, K., & Nesbitt, R.  E. (2017). Charles Murray is once again peddling junk science about race and IQ. Vox. Retrieved July 3, 2020, from https://www.vox.com/the-­big-­idea/2017/5/18/15655638/ charles-­murray-­race-­iq-­sam-­harris-­science-­free-­speech Warburton, N. (2009). Free speech: A very short introduction. Oxford University Press. Weaver, S., & Morgan, K. (2017). What is the point of offensive humour? Retrieved June 24, 2020, from https://theconversation.com/what-­is-­the-­ point-­of-­offensive-­humour-­76889

CHAPTER 8

Conclusion

The future of free speech is up in the air. After centuries of being celebrated as a necessary freedom and a symbol of human progress, its seemingly irreproachable status has been called into question. Even by the standards set by John Stuart Mill, this is not necessarily a bad thing. Despite the criticism I have levelled against his epistemic model, he would not want us to merely accept freedom of speech as a dead dogma. However, the problem for Mill is that it would appear that the criticisms of his conception of freedom of thought and discussion are valid. His approach is no longer suitable in our current context. Mill’s epistemic argument fails to be both consistent and universal and, through this, fails to properly protect freedom of speech as a right available to all. As these criticisms mount up and gain traction, the question of the validity of Mill’s freedom of speech starts to extend out to the validity of the entire concept. This is a problem that must be urgently addressed. Freedom of speech must be maintained as an essential part of the human experience and of human societies. While it is true that speech can be used to abuse or otherwise invalidate the freedom of others, it is not the answer to simply invalidate another freedom in response. The correct way forward is to find a way for these freedoms to coexist. I have argued in this book that a justificatory framework of reflexive freedom of speech drawn from Rainer Forst’s work and thought is a model through which this can be achieved. By utilising reflexivity, we ensure that

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the limits of speech are regulated in a way that is just, consistent, universal and unable to be weaponised into a justification for intolerance or oppression. The case studies I have presented hopefully provide an adequate example for how this principle would function in practice, yet this is not the end. As normative standards shift across time, so must the limits of reflexive freedom of speech. This will require constant vigilance from those who are entrusted to uphold and enforce these limits. For now, though, it is imperative that we promote reflexive freedom of speech to ensure that free speech remains truly available to all.

Index1

A Acceptance component, 92 Anonymous (internet collective), 74 Arab Spring, 74 Arendt, Hannah, 33–35, 35n1, 67, 68, 81 Areopagitica (Milton), 17, 18, 24, 26 Art, 110, 111, 119–121 Assuming infallibility, 20, 26 Augustine, Saint, 81 B Bad speech, 115 Banerji, Michaela, 2, 127–129 Battle of ideas, 44, 45, 111 Bayle, Pierre, 96–98 The Bell Curve (Murray and Herrnstein), 122–124 Black Lives Matter, 2 Boys Will Be Boys (Ford), 120 Brooks, Michael, 122–127

C Call-out culture, 59–63, 65 Cambridge Analytica scandal, 79 Categorical imperative, 99 Censorship, 8, 16–22, 24, 26, 31, 41–45, 57, 59–63, 100, 102, 104, 106 Civil discourse, 41–45 Climate crisis/change, 36–40 Climate denialism, 39 Coexistence conception of toleration, 94, 95 Conceptions of toleration, 90, 91, 94–96 Concept of toleration, 89–94, 100 Consequences of speech, 110, 111, 127–129 Context of toleration, 91 Conway, Erik M., 36–40 Corporate consciousness, 3, 66 Corporate transcendence, 66 Counterterrorism, 82

 Note: Page numbers followed by ‘n’ refer to notes.

1

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INDEX

Critical race theory (CRT), 14, 27, 48 Criticism of Rainer Forst, 101–106 Culture war, 48, 63, 72 D Dead dogma, 21, 27, 28, 131 Defamation, 82–87 Democracy, 1 De-platforming/no-platforming, 3, 110, 115–117 Dignity, 82, 99 E Edict of Nantes, 96 Employment, 66, 67, 111, 127, 128 Epistemic freedom of speech, 18, 31–45, 56, 57, 86, 100, 102, 115, 116, 118 Esteem conception of toleration, 95 Exercise of free will, 93 F Factual truths, 34 False toleration, 96 Feinberg, Joel, 50–54, 53n1 Filter bubbles, 74, 78, 79, 87 First Amendment, 80, 110, 115, 128 Fish, Stanley, 33 Fisher, Mark, 61, 62, 65 Vampire castle, 62, 65 Floyd, George, 117 Folau, Israel, 2, 128, 129 Ford, Clementine, 120, 121 Forst, Rainer, 4, 5, 89–106, 109, 129, 131 theory of Locke’s fear, 102 Freedom of expression as another term for free speech, 9

Freedom of speech as another term for free speech, 7–29 Freedom to speak, 9, 10, 31 Free Speech (Haworth), 8, 9 Free speech as a normative problem, 14 Free speech dilemma, 1 G Garton Ash, Timothy, 7, 82, 84–86, 112 Gelber, Katherine, 57, 58 Generality, 99, 102–105 Gervais, Ricky, 120, 120n1 Google, 81 Grayling, AC, 83–85 Greenawalt, Kent, 2 H Harm, 1–3, 7, 27, 47–68, 83, 86, 87 physical/emotional distinction, 47, 49, 55, 56 principle, 48–59, 68 The Harm in Hate Speech (Waldron), 101 Harris, Sam, 42, 122–126 Hate speech, 31, 54–59, 68 Hawley, George, 112 Haworth, Alan, 2, 8–13, 15–18, 20, 23, 25, 28, 32, 101, 102 classic defence of free speech, 18, 23 criteria for a genuine defence of free speech, 10 map analogy, 13 seminar group model, 32, 86 Historical analysis of free speech, 12, 14 Horizontal toleration, 90, 94 Horton, John, 103–106 Human rights, 113

 INDEX 

I Identity, 2, 3, 48, 57, 59–62, 65, 66 Identity politics, 60 Impact of free speech, 4 Intellectual Dark Web (IDW), 41–45, 111, 122 Intention of free speech, 4 Internet, 1–4, 7, 32, 33, 71, 72, 74–78, 82, 83, 86, 87, 110, 112–115 J Justificatory beings, 98, 104, 118 K Kaepernick, Colin, 116–118 Kaye, David, 75, 80, 81, 113, 114 Klein, Ezra, 122–126 Klein, Naomi, 66 L Lawrence III, Charles R., 14, 55–58 Lee, Robert E. (statue), 119 Letter Concerning Toleration (Locke), 101 Levy, Neil, 115, 116 Locke, John, 96, 97n1, 101, 102 Louis XIV, 96 M Mainstream discussion about free speech, 7 Mainstream media, 63–65 Marantz, Andrew, 71–75, 78, 79 Marketplace of ideas, 14, 33, 36–38 Marshall Institute, 37, 39 Mass media, 37, 42 Matsuda, Mari J., 54–59

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McIntyre, Lee, 37, 38 McNamara, Luke, 57, 58 McNamee, Roger, 73, 78, 79 Mill, John Stuart, 2, 3, 7, 8, 12–15, 18, 20, 21, 23–29, 32, 33, 35, 36, 38–40, 42, 47–52, 54–59, 68, 86, 101, 115, 116, 131 argument from individuality, 49, 50 arguments for free speech, 7, 8, 13, 15, 18 liberty of thought and discussion, 15, 23, 41 Milo, Dario, 66, 84, 85 Milton, John, 7, 17–22, 24–27, 101 arguments for free speech, 7, 15, 17 Misinformation, 7, 31, 36, 38 Murray, Charles, 122–124, 126 N Nagle, Angela, 33, 72, 74 economy of virtue, 62, 63 Neil, Andrew, 43, 44 Neumann, Franz, 80 Neutrality (in journalism), 37 Normative-epistemological toleration, 99 O Objection component, 91, 92, 95 Offense principle, 52–54 Offensive speech, 47, 52, 53 On Liberty (Mill), 2, 12, 18, 23, 24, 35, 48–50 Oreskes, Naomi, 36–40 P Paradox of closure, 28, 40 Paradox of drawing limits, 93 Paradox of moral toleration, 92

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Paradox of self-destruction, 93 Paradox of the relativisation of truth, 92 Paradox of the ‘tolerant racist,’ 92 Parliament of England’s Licensing Order of 1643, 17 Parrhesia, 15, 17 Permission conception of toleration, 94 Peterson, Jordan, 42, 44, 45 A Philosophical Commentary on These Words of the Gospel, Luke 14:23, “Compel Them to Come In, That My House May Be Full” (Bayle), 97 Plato, 16, 17 noble lie, 16 Republic, 16 Plato’s philosopher kings, 16 Political correctness, 31, 42, 63, 111, 123, 126 Post, Robert, 116 Postmodernist rhetoric, 60 Principle of justification, 3, 4, 98–100, 102, 104, 106, 114, 121 Privacy, 31, 73, 74, 76, 78, 79, 82–87, 110, 112–115 Protest, 110, 115–118 Publicly owned social media platform, 114 R Rational truths, 34 Reasonable avoidability, 52, 53 Reciprocity, 5, 92, 93, 98–100, 102–106 Reflexive freedom of speech, 5, 87, 100–103, 106, 109–129, 131, 132 Reflexive toleration, 3–5, 89, 96–103, 109, 111, 114, 121, 126, 129

Rejection component, 93, 100 Reputation, 65, 66, 74, 84–86 Respect conception of toleration, 94, 95 Right to justification, 99, 100, 100n2, 102, 104, 110, 114, 118, 126 The Right to Justification (Forst), 3, 98, 99 Rogan, Joe, 42 Ronson, Jon, 62, 65–67 Rubin, Dave, 42, 43, 45 Rushdie, Salman, 104, 105 S Saint Augustine, 96, 97n1 The Satanic Verses (Rushdie), 104, 105 Scanlon, Thomas, 9 The Scope of ideas, 110, 111, 122–126 Seder, Sam, 43 Shaming, 62, 65–67, 111, 127 Shapiro, Ben, 42–45 Simpson, Robert Mark, 116 Social media, 7, 33, 71–82, 86, 110, 112, 114, 115, 128 4chan, 72 Facebook, 73–75, 79, 80, 112 Tumblr, 72 Twitter, 63, 72, 80, 117, 127 Solove, Daniel J., 84 Speech Police: The Global Struggle to Govern the Internet (Kaye), 81 Srinivasan, Amia, 116 Surveillance capitalism, 78n1, 80, 82, 87 behavioural modification, 73, 76 behavioural surplus, 75, 78 instrumentarianism, 76 T Test of the public interest, 86 Titley, Gavan, 28

 INDEX 

Toleration, 3, 4, 86, 87, 89–106, 114, 118, 121, 129 as both practice and attitude, 93 as a normatively dependent concept, 95, 103 Toleration in Conflict (Forst), 3, 89, 99, 103 Toleration, Power and the Right to Justification (Forst), 103 Transparency, 113 Trump, Donald, 64, 117 Truth in Politics (Arendt), 33 Tyranny of the majority, 24 U Universality, 52, 53

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V Van Eijnatten, Joris, 15 Vertical toleration, 90, 94 W Waldron, Jeremy, 101 Warburton, Nigel, 110, 111, 119 Weinstein, Bret, 42 Weinstein, Eric, 42 What is free speech, 9, 10, 14, 17 Wikileaks, 74 Wolff, Richard, 44, 45 Z Žižek, Slavoj, 45 Zuboff, Shoshana, 73, 75–78, 78n1 Zuckerberg, Mark, 73