What are the limits to free speech or freedom of expression, if the end goal is a free and democratic society in both the private and public spheres?
John Locke begins by arguing from the perspective of a Christian in contending for freedom of expression—because coercion to force someone to conform to a certain persuasion leaves their consciences untouched and instead promotes a fake civil society under which men are forced to suppress their deeply held convictions at the behest of the public good, or the prevention of licentiousness. Locke repudiates the idea that the Commonwealth’s task is anything other than the protection and advancement of civil interests. These civil interests include basic goods which Locke holds to be essential: life, liberty, health, and the protection of private property, which can be anything from immovable to capital. Only the enforcement of these ideals is the duty of the civil magistrate. All else is viewed by Locke as illegitimate, for God has not bestowed upon the Civil magistrate jurisdiction in these matters.
Conscience is God’s domain alone, Locke maintains. Moreover, not even consent could be sufficient to extend this power to the magistrate. Man is bound from ceding matters of the mind and of persuasion. This is self-evident to Locke, because outward actions alone as representing submissions to civil authority in the matters of a prescribed religion would not be faith, which is what religion requires. One must really believe, being persuaded in his own mind that faith is something valuable, something worthy of pursuit. Forced belief is not only unprofitable and ultimately unsuccessful, but it damages the recipient, according to Locke. No effort by other men to coerce people into believing what they are set against can be accomplished.
Locke concludes by stating that all men should equally enjoy the same rights that all men do. His reasoning is deeply ingrained in theology, in particular man’s relationship with God, and the authority afforded to the Commonwealth by God.
A second approach is provided by Thomas Scanlon, who argues that the Millian principle shows that we have good reason to think that freedom of expression ought to be near absolute. The autonomous individual, Scanlon writes, is a logical result that can be deduced from Mill’s writings in On Liberty. Scanlon’s argument is that the Millian principle prescribes that the power of the state is directly limited in relation to the faculties possessed by autonomous agents, namely rationality and sovereignty. This autonomous individual is capable of weighing different courses of action, that is, he is a purposeful being that calculates means and ends in deciding what course of action to pursue. We need not worry how rational an individual is, and indeed if the requirement was perfect rationality, then none would qualify. There is no test for rationality—it only matters that man is by nature rational.
As such, since autonomous individuals do not respond to stimuli in the same way other objects do, an individual cannot in acting (which is defined as purposeful behavior) have done so without independent consideration of an idea or imperative. Reasons are used in order to weight the evidence for and against he idea. Scanlon therefore thinks that the law cannot be used to prevent individuals from coming to hold false beliefs, as rationality dictates that that duty is wholly theirs. Not even harm resulting as a consequence of acting upon false beliefs provides justification for interfering with freedom of speech because again, the individual acts based on his judgment by weighing courses of actions. Of course, Scanlon is reasonable enough allow for legal responsibility to be extended to those who advocate, to those not in full possession of their cognitive faculties, e.g. children or invalids, the committing of a crime. The other caveat results if someone were to coerce or aid you in a crime. As limitations, these seem reasonable, but Scanlon does have a very permissive view of freedom of speech. His argument, in removing the theological undertones, provides a plausible basis for affirming that not only should we have the right to freedom of expression, but that its limitations are so scarce as to make them near non-existence in practical application. This so far does not lead us towards a justification of more broad instance of limitation.
Catherine Mackinnon argues that there are good reasons for limiting free speech. Equality and freedom emerge from the debate as two valuable goods that must be balanced in relation to each other. She states that free speech has been inordinately valued by societies around the world, while equality has been tragically neglected. The more speech that the dominant have, the less equal society becomes. In this regard, all individuals cannot be placed on the same level, for their amount of influence that they have on public opinion and discourse varies drastically. However, those that are dominant in society have the ability to widely disseminate their views at the expense of social equality. Mackinnon emphasizes the damage done to equality by the existence of racism, sexual harassment, and hate propaganda.
As she holds that these views are demonstrably false, Mackinnon believes that we are justified in prohibiting their expression. The state’s job, then, is to ensure that equality is preserved by prohibiting types of speech that do great damage to society, and by giving equal access to speech. While Mackinnon’s arguments do seem decent, they fail to address the Millian claim that once firmly held beliefs often tend to be absurdities. However, since this is discoverable only through the passage of time, the view that they can be legislated and vigorously enforced seems overconfident, especially since a great majority of our beliefs have been overturned over time.