Do we have a right to free speech, and are there any circumstances when that right can be legitimately infringed?

This essay will examine the limits of our right to free speech in the light of one of the most famous defences of personal sovereignty, John Stuart Mill’s On Liberty. In On Liberty Mill argues that ‘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’ (1974, 68). This maxim is known as the harm principle. Mill argues that any citizen ought to be able to expound any argument, sentiment, ideal or opinion on any subject matter without fear of censure or punishment. ‘there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered’ (1974, 75). This sentiment exists in a similar format as article 19 of the UN Charter ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’ (2001, 272)
Mill’s harm principle is based on the concept of utility, wherein actions which are desirable are those which result in the maximum benefit (utility) for all people involved. In our discussion an instance where one person’s utterance directly infringes the rights of another is one where the harm principle may be rightfully invoked. This is the crux of the harm principle and the reason why it is so difficult to apply. It allows for a wide conception of freedom of expression and places almost no restraints on the types of utterances people can make because it is hard to prove that someone’s words have caused another person’s rights to be infringed.
In order to infringe upon the rights of another person they have to suffer some sort of material loss. Imagine that I were to use my influence as a publisher, say, to pursue a vendetta against a company that makes vitamin pills by taking out full page advertisements detailing fictitious claims about the nasty side effects that are caused by the pills. If those advertisements caused a downturn in profits I would be using my freedom of speech in such a way that causes actual financial harm and in turn infringes upon the rights of the company members to earn an honest profit from their enterprise.
An interesting detail about the preceding example is that the action of publishing fictitious and potentially damaging advertisements about something is not necessarily an abuse of freedom of speech. If the advertisements had caused no downturn in profits, or indeed, if prospective customers saw through my ruse and decided to support the vitamin company and spite me by buying more of their products then the total utility of the situation is increased and, according to Mill, the outcome is desirable even though the means of getting there may be reprehensible. This is what Stanley Fish alludes to when he says there is no such thing as free speech, ‘free speech is not an independent value but a political prize’ (1994, 102)
Mill used the example of an angry mob confronting a corn dealer in order to sketch out his idea about which kinds of speech are liable to cause harm. He draws attention to how the context of an utterance can have a bearing on whether or not it is likely to cause harm enough to infringe the basic rights of the corn dealer, specifically, his right to life. He imagines a statement claiming that corn dealers starve the poor which is disseminated through the printing press and the same statement delivered to an incandescent mob that have gathered outside the corn dealers house, ready to commit an act of violence. In the latter example the speaker can be clearly said to have caused harm to the corn dealer, even if he took no part in the violence of the mob because that violence was an inescapable consequence of his words.
One of the biggest problems for the harm principle is that of how to deal with speech that incites or expounds hatred of an individual or, as is abundantly more common, of a group such as a religion or nationality. Although most Western liberal democracies have censures against hate speech it is difficult to see how these are reconciled with the harm principle as any transgressions would have to display direct infringement of personal liberty. A recent example can be used to further elucidate the problem. On 30/09/2005 the Danish newspaper Jyllands-Posten published a series of twelve cartoons, many of which depicted the Muslim prophet Mohammed in a satirical fashion. The publication caused outrage in the Muslim community, largely owing to the fact that it is forbidden under Islamic law to make images of their prophets. Critics of the cartoons claimed that they were needlessly inflammatory, offensive and Islamophobic; defenders of the cartoons claimed that they were a legitimate expression of free speech and a pertinent comment on Islam in a time of increased Islamic terrorism.
There is no doubt that people were deeply offended by the cartoons, but is offence a sufficient condition to warrant the curtailing of a persons right to free speech? It is very difficult to prove harm when the harm that is claimed to have been suffered is emotional. Indeed, in this particular case it is arguable that the only tangible harm caused was in the reprisals where boycotting of Danish products meant that the Danish government lost an estimated 134 million Euros in export revenue. If we were to argue the case from the harm principle we might say that the cartoons ought not to be published in case they incite violence against the cartoonists, which did actually happen. The problem with this is that it puts us in the invidious position of acting for the well-being of the person who is expressing himself, an action which is totally at odds with Mills idea of personal sovereignty.
In another recent example the revisionist historian David Irving was sentenced to three years imprisonment in Austria for holocaust denial. Obviously, denying the holocaust causes many people deep and profound distress but in terms of actual direct harm, as outlined by Mill, the damage is arguably low. This is an example of censorship which would be anathema to Mill ‘if all mankind minus one were of one 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’ (1974, 76). As far as we may find the harm principle a suitable barometer for measuring what people may or may not say, many of us would feel uncomfortable in allowing speech which appears to denigrate, trivialise or humiliate specific groups in our society, such as Irving’s particular brand of revisionism. So where does the line lie between lenience and censorship?
In a liberal democracy the line is considerably transient and often imperceivable. Although the harm principle is a fine ideal it is sometimes unpalatable (and often unwise) to allow free speech in every instance. There will always be societal disapprobation accorded to certain classes of utterance, often based on one group or another taking offence, which instead of curtailing our basic freedoms actually extend them. As women struggled toward equality during the last century (and continue to struggle today) it has become unacceptable to be overtly sexist in polite conversation; equally, racism and homophobia have become taboo and these changes have attendant benefits which are reflected in the conferral of equal rights to groups who, in the past, have been second class citizens. To put it somewhat crudely, although I am no longer ‘allowed’ to call a gay man queer, that man is permitted the same rights as heterosexual couples enjoy in marriage; I have lost my right to say what I please but the homosexual community has gained the same civil benefits as the rest of society. In Millian terms, the overall amount of utility has increased.
When speech is limited for the sake of other values, such as equality under the law as in the previous example, a fair exchange has been made. That we have a right to free speech is a necessary condition of living in a liberal democracy and may be considered an inalienable right. However, as we have seen, absolute freedom to say whatever we please can be divisive and harmful. Although freedom of speech is an important right it is not singularly so. As I hope I have shown, freedom of speech ought not to be discarded in favour of other fundamental principles that are the basis of our society but it ought neither to be given automatic precedence when two or more rights clash. ‘To individuality should belong the part of life in which it is chiefly the individual that is interested; to society, the part which chiefly interests society’ (1974, 141)