Reply to David Cole: Free Speech and the Harm Principle

January 5, 2013 § Leave a comment

The anti-Islamic YouTube video that lead to rioting in Egypt and Libya in September 2012 demonstrates the ability of speech to cause violence and harm. In a NYRblog post, the law professor David Cole argues that there should be no legal restrictions on hate speech such as this video, even when that speech causes harm. I cannot see why speech acts, unlike all other acts, cannot be prohibited when they cause harm to others.

No doubt, freedom of expression is an important right deserving of constitutional protection. Free speech is a necessary condition for science, the discovery of truth more generally, the arts, and culture. For democracies to flourish, citizens need to have the right to freely criticize those in power, and they also need to be able to express themselves so that their democratic representatives can know their views. Moreover, individual flourishing and self-fulfillment depends on people being able to freely give expression to their deeply held thoughts and beliefs. Freedom of expression is an important right requiring a heightened level of protection. But does it deserve absolute protection? In short, no.

We limit even the most important rights because no right gives its holder the ability to harm someone else. This is called the harm principle, and John Stuart Mill expressed it in his book On Liberty, where he says that “the 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” (17). Admittedly, the term “harm” is vague. Does it involve only physical harm? Or does it also include emotional or psychological harm? What about monetary losses? Let us leave these issues aside for the moment and deal exclusively with the case where, as with the anti-Islamic YouTube video, the speech in question causes physical harm and results in real violence.

Since the harm principle applies to all rights I cannot see any reason why it should not also apply to freedom of expression. Mill agrees: “An opinion that corn-dealers are starvers of the poor … may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn-dealer” (104). Inciting a mob to violence violates the harm principle for the simple reason that it is an action that causes harm, and therefore no right to free speech can justify permitting it. Justice Holmes expressed a similar view in the well-known passage from Schenck v. United States:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This passage recognizes the truth that words can have “all the effect of force”, and when they do we need to prohibit them like we prohibit all unilateral acts of force.

Cole bases his concern about prohibiting harmful speech on a kind of slippery slope argument. He says, “[D]efining ‘hate speech’ in a way that draws a clear and enforceable line between that which deserves protection and that which can be prohibited is an elusive, and probably impossible, task.” Cole is concerned that judges and juries will go too far, restrict too much, and that people will self-censor themselves out of fear of punishment under a vague legal definition. This may be a valid concern for those who attempt to prohibit speech that causes offence or harms dignity or equality. The harm principle, however, is far more modest in the speech it prohibits. It only restricts speech that a judge can causally connect to some harm. Most hate speech does not cause harm. It offends, it hurts dignity or equality, but it more often than not does not result in physical harm. Since the harm principle in practice prohibits so little speech, courts are unlikely to take the restrictions too far and prohibit too much speech, and people are unlikely to censor themselves. Cole’s line-drawing concern does not apply to the harm principle.

Cole’s solution to hate speech is a familiar one: more speech. To Cole’s way of thinking, the best way to prevent the harms of hate speech is to allow the victims the right to fight back with more speech. But once you recognize, as Cole does, that speech can sometimes have “all the effect of force” Cole’s solution to hate speech is nothing more than a law of retaliation, which allows the stronger to get away with harming the weaker. Cole does not provide any justification for not protecting against unilateral acts of force merely because those acts of force come in the form of speech.

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