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Published online by Cambridge University Press: 15 January 2014
The idea that human beings are intellectually self-governing plays two roles in free-speech theory. First, this idea is frequently called upon as part of the justification for free speech. Second, it plays a role in guiding the translation of free-speech principles into legal policy by underwriting the ascriptive framework through which responsibility for certain kinds of speech harms can be ascribed. After mapping out these relations, I ask what becomes of them once we acknowledge certain very general and profound limitations in people's capacity for intellectual self-governance. I argue that acknowledging these limitations drastically undermines the putative justifications for free speech of the type that I identify in the first part of the paper. I then show how we can reformulate an “ascriptive” account of intellectual and doxastic responsibility on which we may still be held responsible for what we think or believe even though we lack agent-causal capacities in our thinking and believing. Then, in light of this ascriptive account of intellectual responsibility, I show how the key idea—that people “have minds of their own”—can (and should) still play a significant role in guiding the legislative outworkings of free speech.
1. In the literature, this construal of the problem is often revealed through the author's focusing on a particular case in which an allegiance to free speech is cited to justify the toleration of very harmful speech in order to ask what could be so important about free speech that it would warrant the toleration of such harm. A notable work that exemplifies this approach is Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986); this work on free speech and tolerance was expressly conceived as a response to the Skokie Affair, in which the Illinois Supreme Court ruled in favor of the National Socialist Party of America's right to parade through the town of Skokie while dressed in Nazi regalia.
2. For recent work on free-speech ideals, their position in international law, and their comparative place in various state jurisdictions, see, e.g., Hare, Ivan, Extreme Speech under International and Regional Human Rights Standards, in Extreme Speech and Democracy (Hare, I. & Weinstein, J. eds., 2009)CrossRefGoogle Scholar; Sumner, L.W., Incitement and the Regulation of Hate Speech in Canada: A Philosophical Analysis, in Extreme Speech and Democracy (Hare, I. & Weinstein, J. eds., 2009)Google Scholar; Weinstein, James, An Overview of American Free Speech Doctrine and Its Application to Extreme Speech, in Extreme Speech and Democracy (Hare, I. & Weinstein, J. eds., 2009)Google Scholar.
3. In the relevant jurisprudential literature, this question receives its most perspicuous formulation and analysis in Schauer, Frederick, Must Speech Be Special?, 78 Nw. U. L. Rev. 1284–1306 (1983)Google Scholar.
4. See in particular the “argument from government incompetence” in Frederick Schauer, Free Speech: A Philosophical Inquiry (1982), at 86. An especially strident example of this type of argument comes in Vincent Blasi's paper on what he calls “the pathological perspective” on free speech; “the overriding objective at all times,” Blasi says, “should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically”; Blasi, Vincent, The Pathological Perspective and the First Amendment, 85 Colum. L. Rev. 449–514 (1985), at 449–450CrossRefGoogle Scholar.
5. Mill, John Stuart, On Liberty (Himmelfarb, Gertrude ed., Penguin, 1985) (1859)Google Scholar, at 71.
6. Id. at 131.
7. Id. at 70.
8. The canonical version of this argument is Scanlon, Thomas, A Theory of Freedom of Expression, 1 Phil. & Public Affairs 204–226 (1972)Google Scholar. In subsequent work responding to critics—particularly to Amdur, Robert, Scanlon on Freedom of Expression, 9 Phil. & Pub. Aff. 287–300 (1980)Google Scholar—Scanlon backed away from the hard-line formulation of this argument, conceding that it is merely our interest in autonomy as a good to be promoted rather than autonomy as some sort of inalienable dignitarian right that grounds the obligations of governments to refrain from restricting things such as radical dissident speech; see Scanlon, Thomas, Freedom of Expression and Categories of Expression, 40 U. Pitt. L. Rev. 519–550 (1978)Google Scholar. To be clear, when I speak of “Scanlon's account of free speech” in what follows here, I am referring to the position espoused in the better-known 1972 paper, which is not to be seen as Scanlon's current or final or official view.
9. Ronald Dworkin, Why Must Speech Be Free?, in Freedom's Law: The Moral Reading of the American Constitution (1996), at 200. For a more recent restatement of Dworkin's argument in this vein, see Dworkin, Ronald, Foreword, in Extreme Speech and Democracy (Hare, I. & Weinstein, J. eds., 2009)Google Scholar.
10. The most notable exception that I know of in stressing the importance of responsibility ascriptions in resolving apparent axiological conflicts around free-speech policy is Simpson, Evan, Responsibilities for Hateful Speech, 12 Legal Theory 157–177 (2006)CrossRefGoogle Scholar. Rather more attention is paid to this connection in the jurisprudential literature on incitement law, and unsurprisingly so, since the central issue in that area of law is the conditions under which responsibility redounds to the inciting or the incited party; see, e.g., Strauss, David, Persuasion, Autonomy, and Freedom of Expression, 91 Colum. L. Rev. 334–371 (1991)CrossRefGoogle Scholar; Alexander, Larry, Incitement and Freedom of Speech, in Freedom of Speech (Alexander, L. ed., 2000)Google Scholar.
11. Strauss, supra note 10, at 334.
12. What is being rejected here is what we may call (borrowing terminology from Robert Nozick) a “bucket” theory of responsibility. On this view, there is a fixed quantum of liability, α, associated with a given harm, x, to be allotted between A and B such that if A is solely liable for x, A incurs exactly α units of liability or, if A and B are equally liable for x, they both incur 0.5 of α units. See Robert Nozick, Anarchy, State, and Utopia (1974), at 129–30.
13. Some of the key works in this connection include Andrea Dworkin & Catharine A. MacKinnon, Pornography and Civil Rights: A New Day for Women's Equality (1988); Langton, Rae, Speech Acts and Unspeakable Acts, 22 Phil. & Pub. Aff. 293–330 (1993)Google Scholar; Catharine A. MacKinnon, Only Words (1994); Hornsby, Jennifer & Langton, Rae, Free Speech and Illocution, 4 Legal Theory 21–37 (1998)CrossRefGoogle Scholar.
14. The antipornography argument may be formulated (as in, e.g., Langton, Rae, Subordination, Silence, and Pornography's Authority, in Censorship and Silencing: Practices of Cultural Regulation (Post, R.C. ed., 1998)Google Scholar) such that the responsibility that pornographers are attributed in relation to the perpetuation of sexual hierarchy is based not merely upon the allegation that pornography influences people toward sexist beliefs and attitudes but on the claim that pornographers have an authoritative voice in the social conversation about sexual relations. As Leslie Green argues, though, this claim about pornography's authority is not easily reconcilable with the way that pornography is, despite its widespread use in people's private lives, socially coded as tawdry, low-class speech nor with the fact that other competing sources of putative norms concerning sexual relations (e.g., in law, academia, the education system, and religion) do carry some degree of moral and intellectual authority—more than is carried by pornography, at any rate. See Green, Leslie, Pornographizing, Subordinating, and Silencing, in Censorship and Silencing: Practices of Cultural Regulation (Post, R.C. ed., 1998)Google Scholar.
15. For reviews of the groupthink literature, see, e.g., Esser, James K., Alive and Well after 25 Years: A Review of Groupthink Research, 73 Organizational Behav. & Hum. Decision Processes 116–141 (1998)CrossRefGoogle ScholarPubMed; Baron, Robert S., So Right It's Wrong: Groupthink and the Ubiquitous Nature of Polarized Group Decision Making, 37 Advances in Experimental Soc. Psychol. 219–253 (2005)CrossRefGoogle Scholar.
16. A wealth of evidence pertaining to which is helpfully summarized in Richard E. Nisbett, The Geography of Thought: How Asians and Westerners Think Differently—And Why (2003). For a more general discussion around this issue, see also Prinz, Jesse, Culture and Cognitive Science, in The Stanford Encyclopedia of Philosophy (Zalta, E.N. ed., 2011)Google Scholar, available at http://plato.stanford.edu/archives/win2011/entries/culture-cogsci/.
17. See, e.g., John M. Doris, Lack of Character: Personality and Moral Behavior (2002).
18. Bernard Williams, Deciding to Believe, in Problems of the Self: Philosophical Papers 1956–1972 (1973).
19. The secondary (more tentative) suggestion, then, is that a considerable portion of our nondoxastic attitudes—e.g., the inchoate musings that flit through our minds, some of our aesthetic judgments, and some of our preferences and desires—are belief-like in respect of their involuntaristic nature. We may allow that people have some reflective control over the content of such thoughts (e.g., one can tell oneself to “think happy thoughts”), but still many of these thoughts simply befall us, like our beliefs. It is, of course, consistent with this suggestion to say that people have an agential capacity to decide how they will behave given that they believe p, intend x, find y appealing, or are upset by z. The idea is just that in the usual run of cases, people do not decide to adopt nor effectively deliberate about whether to maintain these arrays of mental states.
20. Blaise Pascal, Pensées, (W. F. Trotter, trans., Dent, 1910) (1670).
21. See Ryan, Sharon, Doxastic Voluntarism, in A Companion to Epistemology 322–325 (Dancy, J., Sosa, E. & Steup, M. eds., 2010)Google Scholar. For an attempt to ground a general account of responsibility for belief in claims about our capacity for indirect doxastic self-control, see Leon, Mark, Responsible Believers, 85 Monist 421–435 (2002)CrossRefGoogle Scholar.
22. I should acknowledge that there are defenses of doxastic voluntarism in the contemporary literature; see, e.g., Ryan, Sharon, Doxastic Compatibilism and the Ethics of Belief, 114 Phil. Stud. 47–79 (2003)CrossRefGoogle Scholar; and Steup, Matthias, Doxastic Freedom, 161 Synthese 375–392 (2008)CrossRefGoogle Scholar. Note, however, that the general tenor of these pieces is compatibilistic. Their aim is to recover some sense in which we can be said to be doxastically free despite our lacking deliberative control over doxastic mental processes. Such efforts are broadly consistent with my contentions here, except that where my compatibilist undertaking is concerned to establish the justifiability of making doxastic subjects accountable for their beliefs despite their lacking agent-causal responsibility for those beliefs, others are concerned to articulate an account of these interconnected dimensions of doxastic responsibility in a manner such that the whole schema can be characterized as one on which the subject is in some sense doxastically “free.”
23. See Brison, Susan J., The Autonomy Defense of Free Speech, 108 Ethics 312–339 (1998)CrossRefGoogle Scholar, at 330.
24. Hurley, Susan, Imitation, Media Violence, and Freedom of Speech, 117 Phil. Stud. 165–218 (2004)CrossRefGoogle Scholar.
25. Several recent examples of this critical approach can be found in Speech & Harm: Controversies over Free Speech (Ishani Maitra & Mary Kate McGowan eds., 2012).
26. H.L.A. Hart, Postscript: Responsibility and Retribution, in Punishment and Responsibility: Essays in the Philosophy of Law (2d ed. 2008), at 214. Hart also identifies a fourth sense of responsibility that is less relevant to our discussion here—namely, responsibility as role-based duty—in relation to which to say that A is responsible with respect to an action ϕ is to say that A has a duty to ϕ because of a social role that she occupies or a particular commitment that she has made to others (e.g., as in when we say that the surgeon has a responsibility to gain the patient's consent before operating).
27. In such cases we are not denying that the sleepwalker was causally “to blame” for the outcome. Rather, we are judging that the sleepwalker is not evaluatively blameworthy for the outcome insofar as the nature of her causal connection to the outcome is not such that she stands to be evaluated on account of her causal role in the outcome; see Hart, supra note 25, at 227.
28. Hieronymi, Pamela, Responsibility for Believing, 161 Synthese 357–373 (2008)CrossRefGoogle Scholar; for another account along broadly similar lines, see Smith, Angela M., Responsibility for Attitudes: Activity and Passivity in Mental Life, 115 Ethics 236–271 (2005)CrossRefGoogle Scholar.
29. This is a broad-strokes summary of the central argument advanced in Tony Honoré, Responsibility and Luck: The Moral Basis of Strict Liability, in Responsibility and Fault (1999).
30. A similarly oriented discussion about the general desirability of being counted as responsible for one's conduct is presented in Gardner, John, The Mark of Responsibility, 23 Oxford J. Legal Stud. 157–171 (2003)CrossRefGoogle Scholar.
31. See in particular Saul Smilansky, Free Will and Illusion (2000), chs. 7, 8.
32. See, e.g., Larry Alexander, The Paradoxes of Liberalism and the Failure of Theories Justifying a Right of Freedom of Expression, in Is There a Right to Freedom of Expression? (2005).
33. Most notably Stanley Fish; see especially Stanley Fish, There's No Such Thing as Free Speech, and It's a Good Thing Too, in There's No Such Thing as Free Speech, and It's a Good Thing Too (1994).
