Explainer: what is free speech?

Who can say what to whom in Australia? In this six-part series, we look at the complex idea of freedom of speech, who gets to exercise it and whether it is being curtailed in public debate.

The term “free speech” is not ideal. The “free” part skews in favour of those who oppose regulation and the “speech” part puts the focus on the spoken word, even though the discussion embraces wider communication including art, writing, films, plays, flag burning and advertising.

It might, therefore, be better to drop the term “free speech” to highlight that the debate is really about whether or not we should regulate the communication of ideas, thoughts and beliefs.

This analysis, however, is not the place to rewrite the terms of reference. So I will use the term free speech with the caveat that “free” does not mean a lack of regulation, and “speech” covers a variety of activities.

Justifying free speech

It is not enough to say “three cheers for speech!”, because if we don’t know why speech is important we don’t know if it is worth protecting.

John Stuart Mill thought that freedom of thought and discussion (he doesn’t use the term “free speech”) is valuable because it brings us closer to the truth, which in turn promotes utility. Alexander Meiklejohn suggests speech is important because it allows for democratic self-government. And Thomas Scanlon and C. Edwin Baker argue that free expression is justified because it promotes autonomy.

These are the three heavyweight contenders in the debate about why speech is important.

The important thing to notice about all of them is that the justification offered in favour of speech also allows for some limitations. If expression is justified because it promotes truth, we have no grounds for defending it when truth is undermined. Speech that damages democratic processes will find itself unprotected by the self-government thesis. And if the autonomy argument is compelling we will not want to protect speech that undermines this goal.

The heated debate about “political correctness” (a term I dislike), or PC, demonstrates this nicely. The usual claim is that PC stifles free speech. This accusation is difficult to quantify. PC might, for example, limit the speech of white men but enhance that of minorities; I would need more data before reaching a conclusion.

But the complaint itself tells us something about the complex nature of speech. Why complain at all? The usual answer is that communication is being muted by PC. This seems to be an argument that we should oppose PC in the name of free speech itself. To make this claim we need to show why speech is important (enter justification here). Once we offer a justification we again have an argument for why speech can be limited.

Perhaps combining the three justifications discussed above will allow for lots of unregulated speech. This doesn’t seem to work because the three accounts often clash. Justifying speech because it promotes truth, for example, seems to allow silencing many a politician (oh joy!) and hence interfering with political speech.

These difficulties suggest that any persuasive argument about speech (as opposed to saying “three cheers”) has to embrace the fact that speech can, and indeed should, be limited. An even more confronting conclusion is that giving reasons for why speech is important makes us reveal underlying values that seem to be even more fundamental than speech itself.

Which speech deserves special protection?

Having (hopefully) established that speech is not unconditionally good, the next task is to determine what the appropriate limits should be.

This will depend in large part on why speech is justified in the first place. The autonomy account will offer different protections than the truth/utility account which in turn will differ from the self-government justification.

Mill, for example, tells us that truth is best promoted by allowing a great deal of communication. But he is willing to shut down speech if it leads to unacceptable harm. This argument faces difficulties, one being harmful speech might lead us towards truth.

His justification for speech seems to clash with his reason for limiting speech. Mill was a pretty smart guy, but even he struggled to provide a coherent and consistent position on free speech.

The thing to keep in mind is that the justifications we use to defend speech will always prioritise some forms of communication over others, and this will be our guide to picking out speech most in need of protection. This again suggests that speech is not valuable in and of itself.

Should some speech acts be punished?

What should we do with speech that is not protected by our favoured justification? The answer depends on balancing the speech act in question against other values.

If the speech is not causing harm we might want to leave it alone. Others might think that harmless but grossly offensive speech should be punished. If speech reveals wartime secrets to the enemy we might want to put the person in prison.

Engaging in hate speech in Europe can quite possibly lead to the same outcome. Libel will incur civil rather than criminal charges. And Mill suggests that in many instances the appropriate punishment for speech is “social disapprobation” rather than legal penalty.

The reason why the argument over free speech has not been put to bed long ago is that people bring different sets of values to the discussion. The debate does not takes place in a vacuum and arguments have to be assessed against social norms, values and institutions. Speech is a social phenomenon because it requires speakers and listeners to engage with one another. The “problem” of free speech does not exist for the person stranded on a deserted island.

Even people with the same values can disagree on the facts of the matter. They might accept Mill’s argument that speech can be limited if it causes harm but disagree over whether hate speech, for example, is captured by the harm principle.

The topic quickly becomes devilishly difficult. The one thing I can say with confidence is that it is unlikely a one-size-fits-all principle will help us navigate the treacherous waters of free speech.