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J.S. Mill's Boundaries of Freedom of Expression: A Critique


The essay opens with some background information about the period in which J.S. Mill wrote. The discussion revolves around the concept of blasphemy which Mill considered to be highly problematic. Tagging unpopular views as ‘blasphemous’ amounted to abuse of governmental powers and infringed on the basic liberties of the out-of-favour speakers. The discussion on blasphemy sets the scene to the understanding of Mill's concerns, his priorities and consequently his emphasis on the widest possible liberty of expression. Section 2 presents the Millian principles that are pertinent to his philosophy of free speech: liberty and truth. Section 3 analyzes Mill's very limited boundaries to freedom of expression, asserting that the consequentialist reasoning had led Mill to ignore present tangible harm. It is argued that democracy is required to develop protective mechanisms against harm-facilitating speech.

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2 Cohen-Almagor R., ‘Between Autonomy and State Regulation: ‘J.S. Mill's Elastic Paternalism’, Philosophy 87 (4) (October 2012), 557582 .

3 Mill J.S., Autobiography (Oxford: Oxford University Press, 1971), 144 .

4 Brink D.O., Mill's Progressive Principles (Oxford: Oxford University Press, 2013); Smith S.D., ‘Is the Harm Principle Liberal?’, American J. of Jurisprudence 51 (2006), 138 ; Kateb George, ‘The Freedom of Worthless and Harmful Speech’, in Yack Bernard (ed.), Liberalism without Illusions (Chicago: University of Chicago Press, 1996), chap. 15.

5 Schauer Frederick, ‘Free Speech on Tuesdays’, Law and Philosophy 34 (2015), 119–40; Sahin Bican, Toleration: The Liberal Virtue (Lanham, MD: Lexington Books, 2010); Newey Glen, ‘Tolerance as a Virtue’, in Horton John and Mendus Susan (eds), Toleration: Identity and Difference (London: Macmillan, 1999), 3864 ; Heyd David (ed.), Toleration: An Elusive Virtue (Princeton: Princeton University Press, 1996).

6 Baker C.E., ‘Autonomy and Hate Speech’, in Hare Ivan and Weinstein James (eds), Extreme Speech and Democracy (Oxford: Oxford University Press, 2009), 139157 .

7 William Ruger, Free Speech Is Central to Our Dignity as Humans’, Time Magazine (3 June 2016),

8 Bollinger L.C., The Tolerant Society (Oxford: Clarendon Press, 1986).

9 Meiklejohn Alexander, Political Freedom (NY: Oxford University Press, 1965).

10 Scanlon Thomas, ‘A Theory of Freedom of Expression’, in Dworkin R.M. (ed.), The Philosophy of Law (Hong Kong: Oxford University Press, 1977), 153171 ; Scanlon T.M., ‘Freedom of Expression and Categories of Expression’, University of Pittsburgh Law Review 40 (4) (Summer 1979), 519550 ; Scanlon T.M., ‘Content Regulation Reconsidered’, in Lichtenberg Judith (ed.), Democracy and the Mass Media (NY: Cambridge University Press, 1995), 331–39; Scanlon Thomas, The Difficulty of Tolerance (Cambridge: Cambridge University Press, 2003); Schauer Frederick, Free Speech (New York: Cambridge University Press, 1982) and Schauer, The Cost of Communicative Tolerance’, in Cohen-Almagor R. (ed.), Liberal Democracy and the Limits of Tolerance (Ann Arbor: University of Michigan Press, 2000), 2842 .

11 Gilmore Jonathan, ‘Expression as Realization: Speakers’ Interests in Freedom of Speech’, Law and Philosophy 30 (2011), 517539 .

12 Marsh Joss, Word Crimes (Chicago and London: University of Chicago Press, 1998); Nash David, Blasphemy in Modern Britain: 1789 to the Present (Aldershot: Ashgate, 1999).

13 Kidd Alan, State, Society and the Poor in 19th-Century England (Houndmills: Palgrave Macmillan, 1999); Ager A.W., Crime and Poverty in 19th-Century England (London: Bloomsbury, 2014).

14 Robert Owen, A New View of Society (1816),

15 It reached an unprecedented circulation of 270,000. Wiener J.H., ‘The Nineteenth Century and the Emergence of a Mass Circulation Press’, in Conboy Martin and Steel John (eds), The Routledge Companion to British Media History (London and New York: Routledge, 2015), 206–14.

16 Ibid., 208. See also Campbell Theophila Carlile, The Battle of the Press (London: A. & H.B. Bonner, 1899),

17 Max Roser, ‘Literacy’, in Our World in Data (2014), [Online Resource]. Radical activists and movements surmounted this problem in working class communities by reading out aloud radical newspapers to 'illiterate’ working class audiences. Radical activists would hold large open air meetings and practice their brand of free speech through these meetings.

18 Holyoake G.J., The Case of Thomas Pooley the Cornish Well Sinker (London: Holyoake and Co., 1857), and Holyoake, The Co-operative Movement Today (London: Methuen, 1891).

19 Nash David, Blasphemy in Modern Britain, and Nash, Blasphemy in the Christian World: A History (Oxford: Oxford University Press, 2010).

20 A bond by which a person undertakes before a court or magistrate to observe some condition, especially to appear when summoned.

21 David Nash, Blasphemy in Modern Britain, 88–89; Deism—Oaths in Courts of Justice-Petition of Robert Taylor, HC Deb 29 November 1826, Vol 16, cc171-8,

22 Nash David, ‘Blasphemy in Victorian Britain? Foote and the Freethinker’, History Today 45(10) (October 1995), 1319, at 14.

23 David Nash, Blasphemy in Modern Britain, 76–77.

25 Theophila Carlile Campbell, The Battle of the Press.

26 The Blasphemy Act 1697 (9 Will 3 c 35) was an Act of Parliament that made it an offence for any person, educated in or having made profession of the Christian religion, by writing, preaching, teaching or advised speaking, to deny the Holy Trinity, to claim there is more than one God, to deny the truth of Christianity and to deny the Bible as divine authority. See

27 David Nash, Blasphemy in Modern Britain, 92–93.

28 Joss Marsh, Word Crimes, 117.

29 Ibid., 118.

30 The Chartist movement was comprised of working-class people who campaigned for parliamentary reform. The name came from the People's Charter, a bill drafted by William Lovett in May 1838. It contained six demands: universal manhood suffrage, equal electoral districts, vote by ballot, annually elected Parliaments, payment of members of Parliament, and abolition of the property qualifications for membership. Chartism grew out of the protest against the injustices of the new industrial and political order in Britain. See Stephen Roberts, ‘The Chartist Movement 1838–1848’, BBC (20 June 2011),, and UK Parliament,

31 Henry Hetherington was indicted for publishing Haslam's Letters to the Clergy of all Denominations, whose arguments were directed against passages in the Old Testament which were deemed cruel and immoral. For this crime, Hetherington was imprisoned for four months. See Stephen Lesley and Lee Sidney (eds), ‘Henry Hetherington (1792–1849), in Dictionary of National Biography (London: Oxford University Press, 1949), Hetherington was out of favour and targeted by the English elite because he refused to pay the press tax. At that time, every copy of a newspaper was required to be impressed with a four penny stamp. Hetherington believed that the working people needed knowledge and news, and he refused to pay for a tax that prevented them from acquiring information. For publishing The Poor Man's Guardian without a stamp, Hetherington was imprisoned twice, each time for six months. See Literary Anecdotes, ‘Henry Hetherington (1792–1849)’,

32 In Principles of Political Economy (New York: D. Appleton And Company, 1885),, esp. Book 2, Chapter 1, Mill advocated abolition of all exceptional laws, especially those relating to the press, public meetings, and associations; in short, of all laws which hinder the free expression of ideas and thought. At the same time, Mill did not believe that freedom of expression can be used as a justification or excuse for committing crimes. For further discussion of the period, see Riley Jonathan, Mill on Liberty (London: Routledge, 1998), 2953 .

33 Mill J.S., ‘Law and Libel and Liberty of the Press’, in Williams Geraint L. (ed.), John Stuart Mill on Politics and Society (Glasgow: Fontana, 1976), 143169, at 148.

34 John Stuart Mill, The Collected Works of John Stuart Mill, XXV – Newspaper Writings December 1847 – July 1873 Part IV [1847],

35 Holyoake (The Co-operative Movement Today) explained that the original object of co-operation was to establish self-supporting communities distinguished by common labour, common property, common means of intelligence and recreation. The aim was to create an ethical communal life for the working people.

36 Royle Edward, ‘George Jacob Holyoake’, Journal of Liberal History, 67 (Summer 2010), 3537 .

37 John Stuart Mill, The Principles of Political Economy,

38 Mill J.S., Utilitarianism, Liberty, and Representative Government (London: J. M. Dent, 1948), Everyman's edition, 90.

39 Ibid.

40 The United Kingdom abolished its laws against blasphemy in England and Wales in 2008 with the passage of the Criminal Justice and Immigration Act. Section 79 abolished the common law offences of blasphemy and blasphemous libel in England and Wales. See

41 Surely the crime itself did not have as an element of the offense one's membership in one class or another, whatever the biases of the government officials might be. If Darwin, who was not, I believe, poor, had publicly, in Trafalgar Square, asserted that belief in a personal God was an infantile and an unwarranted belief, and that the idea of an everlasting life was unintelligible and merely offered as an opiate for the deluded poor of the world, then he could have faced blasphemy charges. Astute people were careful when formulating such ideas in public, not wishing to provoke the attention of the authorities or to test their tolerance. The point that I am making is that, in practice, blasphemy charges were made against people of a certain economic class and against journalists who identified with them. For further discussion, see Cabantous Alan, Blasphemy – Impious Speech in the West from the Seventeenth to the Nineteenth Century (NY: Columbia University Press, 1998).

42 Cohen-Almagor R., Speech, Media, and Ethics (Houndmills and New York: Palgrave-Macmillan, 2005).

43 Skorupski John, John Stuart Mill (London & New York: Routledge, 1989); Gray John, Mill on Liberty: A Defence. London: Routledge & Kegan Paul, 1996); Cohen-Almagor Raphael, ‘Ends and Means in J.S. Mill's Utilitarian Theory’, Anglo-American L. Rev. 26 (2) (1997), 141–74; Riley Jonathan, Mill on Liberty (London: Routledge, 1998); O'Rourke K.C., John Stuart Mill and Freedom of Expression (London: Routledge, 2001); Cartwright Will, ‘John Stuart Mill on Freedom of Discussion’, Richmond Journal of Philosophy 5 (Autumn 2003), 17 ; Riley J., ‘J.S. Mill's Doctrine of Freedom of Expression’, Utilitas 17 (2) (July 2005), 147–79; Brink, Mill's Progressive Principles.

44 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 6, 11, 36.

45 Ibid., 90.

46 Ibid., 114.

47 Ibid., 132, 152.

48 Mill J.S., ‘Law and Libel and Liberty of the Press’, in Williams Geraint L. (ed.), John Stuart Mill on Politics and Society (Glasgow: Fontana, 1976); Williams G.L., ‘Mill's Principle of Liberty’, Political Studies XXIV (1976), 132–40.

49 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 73.

50 Ibid.

51 Ibid., especially chapter 2.

52 Ibid., 79.

53 Ibid., 83. For discussion and critique of the Truth Principle, see Cowling Maurice, Mill and Liberalism (Cambridge: Cambridge University Press, 1963); Marshall Geoffrey, Constitutional Theory (Oxford: Clarendon Press, 1971); Schauer Frederick, Free Speech: A Philosophical Enquiry (New York: Cambridge University Press, 1982: 2734); Greenawalt Kent, Speech, Crime and the Uses of Language (New York: Oxford University Press, 1989: 1626); Cate Irene M. Ten, ‘Speech, Truth, and Freedom: An Examination of John Stuart Mill's and Justice Oliver Wendell Holmes's Free Speech Defenses’, Yale Journal of Law & the Humanities 22 (1), Article 2 (2010),; Barendt Eric, Freedom of Speech (Oxford: Clarendon Press, 2005: 814), and Barendt ‘Thoughts on A Thinker-based Approach to Freedom of Speech’ (in writing).

54 Mill, ‘Law and Libel and Liberty of the Press’, 150. See also Cohen-Almagor R., ‘Why Tolerate? Reflections on the Millian Truth Principle’, Philosophia 25 (1–4) (1997), 131152 .

55 For critique of the Infallibility Argument, see Haworth Alan, ‘On Mill, Infallibility, and Freedom of Expression’, in Newey Glen (ed.), Freedom of Expression: Counting the Costs (Newcastle: Cambridge Scholars Publishing, 2007), 168190, at 170–177.

56 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 83.

57 Ibid., 79.

58 Ibid.

59 Ibid., 95.

60 Ibid., 89.

61 Ibid., 97–98.

62 Ibid., 103.

63 Geoffrey Marshall, Constitutional Theory; Cohen-Almagor R., ‘John Stuart Mill’, in Christians Clifford G. and Merrill John C. (eds), Ethical Communication: Five Moral Stances in Human Dialogue (Columbia, MO.: University of Missouri Press, 2009), 2532 .

64 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 125.

65 Ibid., 96. For further discussion, see Gray, Mill on Liberty; Ten C.L., Mill on Liberty (Oxford: Clarendon Press, 1980), 124143 ; McCloskey H.J., John Stuart Mill: A Critical Study (London: Macmillan, 1971), 118–30; Thompson Manley H., ‘J.S. Mill's Theory of Truth: A Study in Metaphysics and Logic’, The Philosophical Review LVI (3) (May 1947), 273–92.

66 In his 1832 essay ‘On Genius’, 1832 (in John M. Robson [ed.], John Stuart Mill, The Collected Works of John Stuart Mill, Volume I – Autobiography and Literary Essays,, Mill asserted that it is the duty of all people to seek to know the truth and that they should not be satisfied with accepting it on trust: ‘Let each person be made to feel that in other things he may believe upon trust – if he find a trustworthy authority – but that in the line of his peculiar duty, and in the line of the duties common to all men, it is his business to know’. For further discussion, see Schneewind J.B. (ed.), Mill's Essays on Literature and Society (New York and London: Collier, 1965): 101 .

67 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 115.

68 Mill J.S., ‘The Letters of J.S. Mill’, in Mineka Francis E. (ed.), The Earlier Letters of J.S. Mill, 1812–1848, in Collected Works XII (Toronto: University of Toronto Press, 1963),

69 In various writings, Mill randomly proposed various limitations on freedom of expression. In ‘Mr. O'Connell's Bill for the Liberty of the Press’, in The Collected Works of John Stuart Mill, VI – Essays on England, Ireland, and the Empire,, Mill (1824) wrote that ‘we would not permit the press to impute, even truly, acts, however discreditable, which are in their nature private. We would not allow the truth of such imputation to be even pleaded in mitigation’.  In Law and Libel and Liberty of the Press’, in Williams Geraint L., (ed.) John Stuart Mill on Politics and Society (Glasgow: Fontana, 1976), 143169, at 160–161, Mill wrote ‘[T]here is one case, and only one, in which there might appear to be some doubts of the propriety of permitting the truth to be told with reserve.’ This case involves the situation ‘when the truth, without being of any advantage to the public, is calculated to give annoyance to private individuals’. This statement cannot be easily reconciled with Mill's On Liberty. Annoyance in On Liberty cannot and should not serve as a yardstick for prohibiting speech. It is far too light justification for restricting speech. Mill reiterated time and again the Harm Principle which is much more weighty and severe yardstick than mere annoyance. For further discussion, see Feinberg Joel, Freedom and Fulfillment: philosophical essays (Princeton NJ: Princeton University Press, 1992).

70 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 65.

71 Ibid., 140.

72 Ibid., 68.

73 Mill explained that that there should be a great social support for opinions different from those of the mass. See M. de Tocqueville on Democracy in America’, in Dissertations and Discussions (NY: Haskell House, 1973), II, 183, at 73. Mill further elucidated that whenever the multitude are alive to the necessity of ‘superior intellect’, they rarely fail to distinguish those who possess it. See Appendix’, in Dissertations and Discussions (NY: Haskell House, 1973), I, 467474, at 470 .

74 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 95. See also Robson J.M., The Improvement of Mankind (Toronto: University of Toronto Press, 1968), 182271 ; Kateb, ‘The Freedom of Worthless and Harmful Speech’, 233–35.

75 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 75.

76 Riley, ‘J.S. Mill's Doctrine of Freedom of Expression’, 149.

77 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 151.

78 Ibid., 78.

79 Urbinati Nadia, Mill on Democracy: From the Athenian Polis to Representative Government (Chicago: University of Chicago Press, 2002), 8182 .

80 Mill, Utilitarianism, Liberty, and Representative Government, 78. Sidgwick Henry (The Methods of Ethics (Indianapolis: Hackett, 1981: 478) questioned how from a utilitarian point of view it is possible to say broadly that secondary injury to others should be disregarded. For further discussion, see Wollheim R., ‘J.S. Mill and the Limits of State Action’, Social Research 40 (1) (1973), 130 ; Nadia Urbinati, Mill on Democracy.

81 Jewish Virtual Library, Resistance in World War II: Operation Valkyrie – The ‘July Plot’ to Assassinate Hitler, Jewish Virtual Library,

82 During the summer of 1944, the estimated daily number of persons gassed and burned in Auschwitz-Birkenau was over 9,000. Holocaust Timeline,

83 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 114.

84 My view is close to that of Riley, ‘J.S. Mill's Doctrine of Freedom of Expression’. A different interpretation is offered by Morgan who argues that the Millian corn dealer example falls short of direct, unambiguous incitement to commit a violent crime; this is because an opinion that ‘corn-dealers are starvers of the poor’ is different from a direct call to murder the corn dealer. Notwithstanding the exact wording, the consequences might be similarly harmful. See Glyn Morgan, ‘Mill's Liberalism, Security and Group Defamation’, in Glen Newey (ed.), Freedom of Expression: Counting the Costs, 121–143, at 137. One may offer a contrary interpretation insisting that Mill thought that ‘some mischievous act’ must follow for expressed opinions to lose their immunity. Thus O'Rourke regards Mill as a free speech absolutist, arguing that the right to free expression is absolute according to Mill and that even speech which can be regarded as incitement should not be prohibited unless violence occur. See O'Rourke K.C., John Stuart Mill and Freedom of Expression: The genesis of a theory (London: Routledge, 2001), 127 .

85 Cohen-Almagor Raphael, The Boundaries of Liberty and Tolerance (Gainesville, FL: The University Press of Florida, 1994).

86 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 114.

87 Joel Feinberg, Freedom and Fulfillment, 144.

88 For further discussion, see Marshall, Constitutional Theory, 156–157; Feinberg, Freedom and Fulfillment, 141–144; Gray, Mill on Liberty,  103–10; Jacobsen Daniel, ‘Mill on Liberty, Speech and Free Society’, Philosophy and Public Affairs 29 (3) (2000): 276309, at 286; Eric Barendt, Freedom of Speech, 269–270;  Brink, Mill's Progressive Principles, 156–172.

89 In ‘The French Law Against the Press’, Spectator (19 August 1848), page 800, in The Collected Works of John Stuart Mill XXV – Newspaper Writings December 1847 – July 1873 Part IV [1847],, Mill protested against the decree against the press passed by the French National Assembly of France, saying it ‘is one of the most monstrous outrages on the idea of freedom of discussion ever committed by the legislature of a country pretending to be free’. If only one set of opinions is to be permitted on any significant matter, Mill asked rhetorically, what is the essence of political discussion?

90 Herb Morris suggests in his remarks on a draft of this paper that Mill ‘surely would have believed that incitement to an act of fraud, where fraud was criminalized, could also be prohibited’.

91 Mill, Utilitarianism, Liberty, and Representative Government, 114.

92 For further discussion, see Lloyd David and Thomas Paul, Culture and the State (London: Routledge, 1998).

93 Riley Jonathan, ‘Mill, Liberalism, and Exceptions to Free Speech’, in Newey Glen (ed.), Freedom of Expression: Counting the Costs (Newcastle: Cambridge Scholars Publishing, 2007), 205 .

94 J.S. Mill, Utilitarianism, Liberty, and Representative Government, 140. Eric Barendt noted in his comments on a draft of this paper the distinction between insulting speech and offensive speech, arguing that it would be wrong to penalize offensive speech, and that freedom of speech must include the freedom to publish offensive material. The law has to strike a balance between the tolerance of offensive speech on the one hand and on the other the proscription of speech which is insulting and intended or likely to lead to violence, disorder and so on.

95 Karpin Michael and Friedman Ira, Murder in the Name of God (London: Granta Books, 2000); R. Cohen-Almagor, The Boundaries of Liberty and Tolerance.

96 Neier Aryeh, Defending My Enemy (New York: Dutton, 1979); Feinberg Joel, Offence to Others (New York: Oxford University Press, 1985); Downs D.A., Nazis in Skokie (Notre Dame, Indiana: University of Notre Dame Press, 1985); Cohen-Almagor R., ‘Harm Principle, Offence Principle, and the Skokie Affair’, Political Studies XLI (3) (1993): 453470 ; Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy;   Waldron Jeremy, The Harm in Hate Speech (Cambridge, Mass.: Harvard University Press, 2012).

97 Cohen-Almagor R., ‘Political Extremism and Incitement in Israel 1993–1995, 2003–2005: A Study of Dangerous Expressions’, Democracy and Security 3 (1) (2007), 2143 .

98 Tsesis Alexander, ‘Terrorist Speech on Social Media’, Vanderbilt Law Review 70 (2) (2017), 651708 ; Cohen-Almagor R., Confronting the Internet's Dark Side: Moral and Social Responsibility on the Free Highway (NY and Washington DC.: Cambridge University Press and Woodrow Wilson Center Press, 2015).

99 Schenck v. U.S. 249 U.S. 47 (1919).

100 Chafee Zechariah, Free Speech in the United States (Cambridge, Mass.: Harvard University Press, 1946), 397 .

101 Ryan Alan, The Philosophy of John Stuart Mill (London: Macmillan, 1970), xi–xx; Rees J.C., John Stuart Mill's On Liberty (Oxford: Clarendon Press, 1985), 77 .

In Memory of Geoffrey Marshall (1929–2003): scholar, mentor, friend

1 I thank Richard Oliver Colin, Herb Morris, Alex Tsesis, Clare McGlynn, Steve Darwall, Eric Barendt, Kath Gelber, Wayne Sumner, and Nick Zangwill for their sharp and constructive comments. The article is dedicated to the memory of Geoffrey Marshall with whom I had many hours of deliberations on the scholarship and influence of J.S. Mill. I cannot think of a better teacher.

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