How Free is Free Enough?
Ronald Dworkin on free speech and censorship
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Today, we are almost too ready to accept the censoring of political speech in the “free” West and the regulation of speech in online media, primarily where race, antisemitism, and sexuality are concerned. Online censorship laws are on the rise in all countries, and what is sometimes called “cancel-culture” by its enemies has to be questioned as to whether it is a beneficial development or not, whether it’s necessary, as its proponents say, or the end of free, secular, democratic culture, as its opponents claim.
Of course, the debate on free speech is much older than that. Socrates is not only commonly seen as the father of philosophy, but he is also the father of all those who are being killed to silence them. Since then, the powerful have always tried to restrict speech in ways that suited them, while the dissenters have tried to defend their right to speak up. The more recent development is that today not only the rulers, but the citizens themselves attempt to censor the speech of other citizens if they find it offensive.
Interestingly, on the same day and page where The Guardian reported on the Salman Rushie stabbing, one could read about the censoring of a comedian at the Edinburgh festival, whose show was cancelled “over ‘extreme racism, homophobia and misogyny’”; and a column by Simon Jenkins on why we need online censorship. It seems that our condemnation of censorship is pretty selective, even within the ideologically somewhat homogeneous group of Guardian writers and readers: we are quick to defend our own right to insult other cultures, but we are not willing to accept similar challenges to our own views.
Let us begin with an exceptionally clear and well-argued article by Ronald Dworkin from 1994 [1] – long before the censorship of dissenting views in our own society became commonplace. More articles on the topic will follow. If you don’t want to miss any, you can subscribe right here:
Which rights are strongest?
Dworkin begins by recognising that the most problematic threat to free speech does not come from those who traditionally tried to control it: governments and “the despots and ruling thieves who fear it” (p.9). Instead, we today have a situation where free speech has a number of “new enemies”:
… who claim to speak for justice not tyranny, and who point to other values we respect, including self-determination, equality, and freedom from racial hatred and prejudice, as reasons why the right of free speech should now be demoted to a much lower grade of urgency and importance. (p.9)
The motivation for these new attacks on free speech is usually a good one, Dworkin admits. It is our reluctance to impose our own values on other cultures. When a whole culture believes in a particular religion, we cannot well ask them to accept that we want the freedom to make fun of it.
How can we expect people who are committed to a particular faith, as a value transcending all others, to tolerate its open desecration? (p.10)
We might even claim that Western cultures over-value free speech even within their borders. Should Nazis, Covid-conspiracy theorists or climate change deniers (my examples) really be allowed to expand their democratic influence by publicising their opinions through the Internet, where they reach defenceless readers?
Dworkin, in 1994, did not have this particular problem. One could argue that before the Internet, it was much harder to reach the masses with crazy conspiracy theories. It was certainly possible, and the Nazi state in the 1930s showed how to go about it, but it was more difficult. In a well-working democracy, one would have a wide selection of curated newspapers. Although some of those were also bad sources of information, one could choose to read multiple newspapers to get a better view of things. The Internet has removed all access controls and curation from the process of publishing, so that now every person, no matter how deranged their opinions, can put something up on the Internet for all to read. And it does not stop there. The recommendation algorithms of Google, Bing, Youtube, Netflix and a thousand other places make sure that one will always see more of what one has liked watching or reading in the past, thus amplifying and cementing the effects of initial bad choices in the selection of one’s sources. Everyone has experienced that: if you accidentally click on one conspiracy video on Youtube, you will immediately be recommended the second one, and another handful after that, and the more you watch these, the more Youtube will throw at you, completely hiding the fact that there are other opinions and different positions out there.
At the time Dworkin was writing his article, there was no widespread Internet use and no confirmation bubbles, but there already were “speech codes” in place in US universities, it seems. I personally don’t remember anything like that from German universities – it would be interesting to see a comparative study of how the idea of regulating speech in universities spread around the globe from the early 90s to today.
The central statement in Dworkin’s analysis comes now:
Some speech code supporters have taken the opportunity not just to argue for an exception to free speech, however, but to deny its importance in principle. (p.10)
It is important to make this distinction. As long as one upholds free speech as one of the central principles of a culture, there is always room for some well-justified exceptions in extreme cases. But things get dangerous when free speech is not limited only exceptionally but when, as Dworkin says, the importance of free speech is denied in principle. It then becomes possible to limit it in arbitrary ways without needing to justify its limitations in the same way as before.
Free speech and pornography
The debate about free speech brings up another important question: what kinds of “speech-like” acts should be included in the protection of free speech? Should, for example, pornography be protected as free speech?
Pornography is a particularly interesting case, because no one, not even those who disseminate and consume it, would want to argue that it has any particularly high value for a society. If the point of protecting free speech is to safeguard other values, for example the right of political dissenters to voice their opinions in a democratic process, then pornography would not appear to be a relevant kind of speech. Its effects are almost entirely bad: it may be seen to demean those depicted in it, its goal is to provide the lowest, least intellectual kind of pleasure, it does not educate or better the consumer, and it is arguably often not even “speech.”
Dworkin sees these kinds of speech as useful cases to think about, precisely because they are hard to defend.
We are more likely to relax our defence of that freedom [of speech] when its betrayers are foreign, or when the speech in question seems worthless or even vile. But if we do, then the principle is inevitably weakened, not just in such cases, but generally. … Is free speech a universal human right, a right so important that we must work to secure it even in nations where it is unfamiliar and alien? Is it so important that we must tolerate, in its name, despicable and harmful speech in our own society?
The example of pornography also shows why John Stuart Mill’s (1806-1873) defence of free speech is not sufficient. Mill argued that we should accept free speech even in cases where we are opposed to the ideas presented, because the truth is more likely to be found if we compare different ideas. Even if the other’s ideas are wrong, he said, we still gain some value from having our own, correct thoughts confirmed in that competition of different ideas. But obviously this argument won’t work for pornography, which does not supply any ideas for the consumer to consider. It is also doubtful, Dworkin says, whether this argument would even make sense to religious fundamentalists. If one’s source of truth is a particular holy book, and the statements in that book are assumed to be true beyond the possibility of questioning them, then what can possibly be the value of allowing others to criticise that book?
Dworkin concludes:
If freedom of speech is a basic right, this must be so not in virtue of instrumental arguments, like Mill’s, which suppose that liberty is important because of its consequences. It must be so for reasons of basic principle.
The freedom of speech must be assumed to be valuable in itself, and not because it leads to some desirable consequences down the line. But where to find a justification for such a claim?
Free speech, social contract and human dignity
Dworkin proposes that the freedom of speech can be derived from the idea of a citizen’s human dignity. A legitimate, democratic state cannot force us to accept its decisions (and thus, potentially take away our freedom to act otherwise), if it does not first give us the right to express our own opinions. And not only to express them in a way that has no consequences for society (for example, as a social media post that nobody will read), but to express them in a way that constitutes a genuine participation in a society’s decision-making process.
It is unfair, Dworkin says,
to impose a collective decision on someone who has not been allowed to contribute to that moral environment, by expressing his political or social convictions or tastes or prejudices… (p.13)
And this applies even to pornography, although it does itself not express an opinion. Because outlawing pornography would take away some rights from those who want to disseminate and consume it. And in a democratic society we must give everyone a voice in contributing to such a decision, including the pornography supporters. Otherwise the decision to ban pornography would lack democratic legitimacy.
I must admit that Dworkin lost me a bit at this point. Yes, banning pornography would take away the rights of the pornographers. And yes, taking away these rights requires a prior debate in which all, including pornographers, can effectively voice their opinions and contribute to the final decision. But why does this argument support the dissemination of the pornographic material itself?
Imagine, as a parallel case, that we were disputing the right of humanity to land on the Moon. I understand Dworkin to be saying that we must let astronauts go to the Moon because not allowing them to do so would violate their rights, because it would prevent them from participating in the debate on whether to go to the Moon or not.
This doesn’t make much sense to me. Astronauts (and everyone else) can very well participate in the debate and influence society’s decision to go to the Moon or not, even if they have not actually yet gone to the Moon. The decision is taken prior to the action and the action we decide on does not need to have been performed before we take the decision.
Back to pornography, we don’t necessarily need to allow the dissemination and consumption of pornography in order to have a debate on the merits (or not) of pornography. Nobody says that pornography advocates should not make arguments in public about pornography. It is only the material itself, not the arguments in favour of it, that society would be censoring. But perhaps there is some bit of thought there that I didn’t understand or appreciate correctly, so please feel free to enlighten me in the comments!
Another objection to this argument, and one that Dworkin does address, is about the value of democracy itself. It seems like the argument above derives free speech from the dignity of humans in a democratic state. But what if a state is not democratic? Would this argument also apply to a theocratic state, for example? Or to a totalitarian dictatorship?
Here Dworkin says that even without democracy, there is a core obligation of the leaders in any social-contract situation to give equal concern to all their subjects, whatever the political system they live under:
… We can distinguish democracy, as a form of political organisation, from the more basic obligation of government to treat all those subject to its dominion with equal concern, as all people whose lives matter. That plainly is a basic human right; and many of the more detailed human rights we all recognise flow from it. And so does a right of free speech.
If anyone claims to have the right to make laws that will restrict others’ freedoms, then these others must have a say in the creation of those laws. Not giving them the right to free speech would violate the core of the social contract, by imposing harmful limitations on citizens against their will and without an inclusive process that would make it possible for them to voice their opposition.
But again, I don’t see that this argument works. The freedom of pornographers to argue in favour of pornography is not the same as pornography itself. The freedom of Salman Rushdie to argue that Muslims should tolerate being insulted is not the same as actually insulting them. The freedom of Nazi supporters to argue that a Nazi state would be a good thing is not the same as actually going to the streets and declaring the shouting of violent slogans to be protected by free speech.
Or is it?
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Thanks for reading! Join me next week for another look at the free speech and censorship debate! Photo by Freddy Kearney on Unsplash.
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[1] Dworkin, R (1994). A New Map of Censorship. Index on Censorship 1/2 1994, pp. 9-15. Online here.
