When to Limit Free Speech: Part 1

December 8, 2011

Political Theory


John Stuart Mill gave several compelling arguments for freedom of speech in On Liberty, including cases where the opinions being expressed are wrong, unpopular, or heretical. However, it’s harder to tell when Mill would limit free speech. Mill gives us only one vague statement in On Liberty on when to limit free speech, and clearly, it leaves a lot of room for interpretation. He says,

[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.

So while this blog has seen a lot of posts arguing that a particular controversy is an issue of free speech, and that the person in question should be allowed to express their opinion, this post has a different goal: to outline some possible cases where free speech should be limited.

The first and most obvious cases are slander and libel, where someone makes false, negative remarks about another person or organization. It seems at first that laws preventing defamation are a necessary limit to free speech. The drawbacks of allowing defamation can lead to chaos and torment in someone’s personal life, but defamation can arguably harm an economy, too—a company spreading misleading information about another company can alter the market in a way that hurts both the slandered business and the consumers.

In addition to its economic impact, there would likely be an impact on politics and government as well: this article shows Mitt Romney accusing Barack Obama of quoting him out of context (ironically, Romney is being widely criticized for a TV ad that is accused of quoting Obama out of context). This shows how allowing defamation can corrupt the political process as well—people will vote very differently if misinformation is spread about the candidates.

Romney complaining

Defamation laws seem like a clear-cut example of where free speech should be limited. There is, however, the phenomenon of the “chilling effect,” where people are hesitant to express opinions that are true but may be labeled as defamation. This leads to situations where valid opinions are not being expressed; even though they are legal, the laws are, in effect, limiting them.

Until the 1965 court case Lamont vs. Postmaster General, for example, the Postmaster General was required to detain all “communist political propaganda” until the addressee specifically authorized the delivery. While not specifically banning the propaganda, the law stifled the spreading of such materials by putting them under government observation. Justice William J. Brennan cited this as an instance of the chilling effect when the Supreme Court overturned the law in 1965.

Lamont vs. Postmaster General is not specifically an example of defamation, but does show how defamation laws could very easily lead to a situation where people, afraid of the law, censor themselves even when they are expressing legitimate and fully legal opinions.

Also, it could be argued that there may be times when spreading lies about someone is beneficial. This certainly doesn’t describe the majority of cases, but aren’t there times when telling insulting lies about someone who is truly bad is more effective than convincing the public that the person is evil using real evidence? Aren’t there times when someone might me compelled to slander a politician because he knows they will be a terrible or cruel leader?

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Another type of free speech that many would support limiting is what has been called “shouting fire in a crowded theater”: in short, the type of speech that might cause widespread panic or provoke an unnecessary response to something that isn’t true. Someone being allowed to scream “fire” in a public forum when there wasn’t one would allow chaos to erupt. Shouldn’t this type of speech be limited?

It helps to look at it historically. The phrase “shouting fire in a crowded theatre” is a paraphrasing of Oliver Wendell Holmes, an influential Supreme Court Justice. A man named Charles Schenck had printed and distributed over 15,000 leaflets urging Americans to resist the draft for World War I, calling the draft an infringement of the Thirteenth Amendment, which prohibits “involuntary servitude.” In the important case Schenck vs. United States, the Supreme Court ruled that Schenk did not have the right to protest the draft during World War I.

Oliver "The Mustache" Holmes

Despite being an advocate for a broad interpretation of freedom of speech, Holmes defended the ruling, saying “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” As a metaphor, shouting fire in a crowded theater seems to be a type of speech that definitely should be limited; but it’s historical origins make it a bit more questionable: it was a time of war, sure, but it’s a little unnerving that Schenck was imprisoned merely for questioning the legality of the draft. In fact, even using the metaphor of shouting fire in a theater to describe Schenk’s protests seems to be quite a stretch. This presents another problem—under such a broad interpretation, “shouting fire in a crowded theater” can give quite a bit of leeway to legislators and officials.

It’s hard to think of a single case where everyone would agree that freedom of speech should be limited. So what do you think? Should we enact anti-defamation laws? Should we allow “shouting fire in a crowded theater”? Are there any other cases where you would support limiting free speech?

Look for Part 2 next Thursday!

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About antuck

University of Michigan student.

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  1. Hate Speech: When to Limit Free Speech, Part 2 | A Game of Roles - December 15, 2011

    […] action, Political Theory In my last post, I wrote about two types of speech that we might desire limiting. In this post, I want to examine […]

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