Much Ado About Chattering Mill: Free Speech and Its Justification

There has been a proverbial shit-storm about free speech lately, and many who identify as “left” or liberal or a combination of the two–whatever that means– have been battling out the lines of “Free Speech” around terms largely set by the right and their responses have largely been limited by those terms. However, recently, there have been attempts to undo this limitation in framing. Take,  for example, The “Free Speech” Charade, by Aaron R. Hanlon, over at the New Republic:

Aaron Hanlon’s argument seeming makes sense as the move to the lofty rhetoric of freedom of speech hits many attempts by the right-wing to censor speech itself, and that many of the protests are grounded in legitimate grievance.  This is true and far, but it doesn’t really work as it defines the “reasonable” free speech defense in defending content before it is stated off of an assumed past.

Hanlon’s concerns appear to reject the right’s framing; however, the anyone who is defending the absolute act, including most leftists of the past, would say, Hanlon has conflated two issues.  Hanlon’s other responses about censoring accessing being based on law around institutions also conflates the argument of law and with the argument of rights, although this is fair since almost all arguments about rights are rooted in law as natural law justifications of rights (which the Bill of Rights itself was justified in) seem no longer sustainable in a post-Deistic world.

Furthermore, ironically, if one digs into Hanlon’s academic background, he knows this. He, after all, studies media analysis and Enlightenment values.  Hanlon’s defense of context is not some kind of Marxist imposition of an ideological code.   His argument mirrors a caveat in one of the founding texts of Liberalism, Mill’s On Liberty, and I suspect he knows this.   Also, other articles criticizing the methodology of the PC Left, by Hanlon himself seems to come from a utilitarian and Enlightenment calculus.  Take for example his 2016 article, “What the P.C. Left Is Doing Wrong in Language Debates”,

That is, I take the castigation of someone for what they genuinely don’t know or can’t reasonably be expected to know as a justice issue unto itself, a problem related to what the philosopher Miranda Fricker calls the “epistemic injustice” of allowing prejudice to shape one’s impression of another’s credibility as a knower. Epistemic injustice may work in the other direction, too, in the bad-faith supposition that someone ought to know something is offensive when broader society has failed to treat it as such (therefore that person deserves to be shamed, scorned, or ridiculed for not knowing).

There’s a time for activism and a time for education. If the social justice movement is going to be successful, it needs to do a better job of identifying teaching opportunities amid perhaps more obvious occasions for activism, and thus to discern the difference between those who utter clichés of questionable meaning and those who should be confronted for their bigotry. This is particularly the case for those of us who hold positions of educational or socioeconomic privilege, who are at least partially insulated from certain kinds of bigotry.

If we want our communities to be more just, open, and inclusive, we need to make adjustments. This means accepting the reality that a lot of people, even intelligent and thoughtful people, really don’t understand the implications of quite a lot of everyday language not typically associated with bigotry. It makes little pedagogical sense to lecture these people, to tell them bluntly what they can and can’t say. We need to approach such scenarios not simply with the willingness to question, but also to listen to and countervail the kinds of answers we don’t like to hear. As with any teaching and learning scenario, we need to understand our audience before we can facilitate its understanding.

Interestingly, the epistemic privilege argument he is making here sounds like an argument about fallability of position updated to our times.  Now, it is not the same thing exactly, but it is related and sounds something like part of Mill’s argument for free speech.

Indeed, the problem becomes the conflict of harm reduction and relative affluence compared with an absolute value.  Hanlon says argues that the no platforming may be a right that institutions have, but in line with the center thought of Enlightenment liberalism (and current trends of the left-edge of the center of the Democratic party):

For this process to work productively, changes need to happen on both sides of the no-platforming issue. Students and protesters need to eschew violence and disruption to focus instead on the many viable arguments for why low-value speakers like Coulter don’t deserve a campus platform. Free-speech activists, meanwhile, should rein in overly broad definitions of censorship, and understand that free speech means the right to speak, not the right to a college platform.

The problem still remains that it is possible to prove, for sure, what a person will say before they say it.  So viable arguments against “low-value” speaker, which while I agree with Hanlon is full of assumptions about the value that he himself doesn’t really assert, are impossible to make soundly and validly if our concerns are the content of their speech. They can only be made probabilistically.

Furthermore, there are a ton of practical considerations about access that these free speech debates don’t consider and Hanlon is right about that.  But one must establish a principle before tackling the caveats or limitations and not conflate several related issues that overlap but are not, strictly speaking, the same.

Why is it important that Hanlon, however, is carrying a conflict out of Mill?  Was not Mill the absolutist on freedom of speech on Utilitarian grounds?  How then is Hanlon also a representative of that tradition?

A problem on analytic forms of logic is that they are poor grounds for justifying “right” and that analytic formulations of logic–including deductive and inductive–have trouble justifying rights too as they cannot adjudicate on the soundness of premises in and of themselves. We can assert abductive reasoning, but the abductive case is always limited on matters of rights for reasons I will get into later.

Mill attempted to lay down an objective argument for freedom of speech without Lockean reference to natural law (although he does share some Lockean assumptions that make this problematic). Mill realized that Benthamite utilitarian thinking would have no such space for that kind of right.

Many former and current Leftists have turned to Mill to justify freedom of speech. Most famously the cankerous and often brilliant Norman Finkelstein:

My friend Douglas Lain who has interviewed Finkelstein was convinced by the argument.  However, unless you bracket out most of Mill’s framework and justification, you still can’t reason yourself to a principle to oppose Hanlon and company’s soft caveats.  After all, this is institutional, not legal, censorship; and is not Mill also the prophet of harm-reduction as a principle of ethics and legality?

First, let us put forth an attempt to formalize Mill’s infallibility principle, and then I will get to the rest of the argument and what I see as a limitation of both in answering an intelligent moderate supporter of Campus censorship like Hanlon.

My friend Douglas Lain would  part of Mills argument (and Finkelstein’s and attempts to reduce to a deductive principle):

A) Humans do not have precognitive powers.

B) A claim to know a thing prior to argumentation, debate or cognition is a claim of precognitive power.

Therefore,

C) Human claims to know a thing prior to argumentation are false.

If  Human claims to know things prior to argumentation are false, then an argument must be allowed so that those beliefs can be defeated.

Now, I actually think this is a problematic argument because the premise A) would have to be proven and it seems SO far removed from the debate–a debate about cognition and physics–that it seems hardly worth arguing, but to admit the validity of Lain’s argument would imply that either you have to reject the first premise or accept the latter. Furthermore, the conflation of argument, debate, or cognition, actually equates two forms of discourse with all conscious brain activity, which is questionable.  However, this conflation is to avoid problems of A priori distinctions, both analytic (such as tautologies) and synthetic (things that are contingently necessary for formal logic).

In short, Lain and Finkelstein see the primary strength of Mill as moving the argument away from ethics and harm-reduction, and into the epistemology, thus limiting the applicability of harm reduction arguments.

Mill does actually argue something like this.  In the second chapter of On Liberty, Mill puts forth these principles, summarized on CONFESSIONS OF A SUPPLY-SIDE LIBERAL,

  1. First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility. (See ”John Stuart Mill on the Adversary System,“ ”John Stuart Mill on the Protection of ‘Noble Lies’ from Criticism“ and ”Should Troubling Arguments Be Kept Away from Those Who Might Be Unduly Swayed by Them?“)
  2. Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied. (See ”A Remedy for the One-Sidedness of the Human Mind“ and ”Why Progressives and Conservatives Need Each Other.“)
  3. Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. (See ”Let the Wrong Come to Me, For They Will Make Me More Right“ and “In Praise of Trolls.”)
  4. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience. (See “How Freedom of Thought for Falsehood Keeps the Truth Alive.”)

One notices quickly that Mill’s argument mirrors my friend’s deductive argument, but isn’t a deductive argument.  Lain brackets out the fourth proposition and doesn’t deal with the third.  In the case of colleges versus strong conservative and reactionary speakers, the consensus of society is generally with neither.

The liberal will respond quickly to Doug though that most of these days, on either side, are not about truth.  Lain would response, rightly, that you can’t know that. But the opponent would then bring up harm-reduction and unequal access as other limiting factors and that censoring some conservatives just on campus does not limit those ideas from spreading, but that the speakers could harm remaining students with their words.

Furthermore, as the Stanford Encyclopedia of Philosophy,  Mill’s conception of free speech had caveats and philosophical basis not shared now.  The first is that Mill accepted harm-reduction as a limit:

In the footnote at the beginning of Chapter II of On Liberty, Mill makes a very bold statement:

If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered. (1978, 15)

This is a very strong defense of free speech; Mill tells us that any doctrine should be allowed the light of day no matter how immoral it may seem to everyone else. And Mill does mean everyone:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind. (1978, 16)Such liberty should exist with every subject matter so that we have “absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological” (1978, 11). Mill claims that the fullest liberty of expression is required to push our arguments to their logical limits, rather than the limits of social embarrassment. Such liberty of expression is necessary, he suggests, for the dignity of persons. If liberty of expression is stifled, the price paid is “a sort of intellectual pacification” that sacrifices “ the entire moral courage of the human mind” (1978, 31).

These are powerful claims for freedom of speech, but as I noted above, Mill also suggests that we need some rules of conduct to regulate the actions of members of a political community. The limitation he places on free expression is “one very simple principle,” (1978, 9) now usually referred to as the harm principle, which states 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. (1978, 9)

Mill justification for his epistemic argument is not arguing for epistemically but on the grounds of self-sovereignty and self-ownership (a la Locke), and that same principle means that harming another sovereignty would put both in conflict and thus to avoid that conflict, some restrictions apply.  One sees this puts some nebulous limits even on MIll’s strong argument, and that it is justified in ontological and metaphysical premise that may be shared.

The Standford Encylopedia goes on:

With these comments, and many others, Mill demonstrates his distaste of the apathetic, fickle, tedious, frightened and dangerous majority. It is quite a surprise, therefore, to find that he also seems to embrace a fairly encompassing offense principle when the sanction does involve social disapprobation:

Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners and, coming thus within the category of offenses against others, may rightly be prohibited. (1978, 97 author’s emphasis)

Similarly, he states that “The liberty of the individual must be thus far limited; he must not make himself a nuisance” (1978, 53). In the latter parts of On Liberty Mill also suggests that distasteful people can be held in contempt, that we can avoid them(as long as we do not parade it), that we can warn others about them, and that we can persuade, cajole and remonstrate with those we deem offensive. These actions are legitimate as the free expression of anyone who happens to be offended as long as they are done as a spontaneous response to the person’s faults and not as a form of punishment.
But those who exhibit cruelty, malice, envy, insincerity, resentment and crass egoism are open to the greater sanction of disapprobation as a form of punishment, because these faults are wicked and other-regarding. It may be true that these faults have an impact on others, but it is difficult to see how acting according to malice,envy or resentment necessarily violates the rights of others. The only way that Mill can make such claims is to incorporate an offense principle and hence give up on the harm principle as the only legitimate grounds for interference with behavior. Overall, Mill’s arguments about ostracism and disapprobation seem to provide little protection for the individual who may have spoken in a non-harmful manner but who has nevertheless offended the sensibilities of the masses.

Hence we see that one of the great defenders of the harm principle seems to shy away from it at certain crucial points; even Mill was unable to mount a defense of free speech on this “one simple principle” alone. It does, however, remain a crucial part of the liberal defense of individual freedom.

Furthermore, ostracism and disapprobation is what the no platformers are doing, although, with the aid of a state or institutional apparatus in education, they are not passing laws. In short, Mill’s assumptions don’t get you out of this, and don’t answer the reply to Lain’s hypothetical that these debates “aren’t about truth.”

While it is hard to justify a principle on an abductive argument, indeed Eric Posner seems to argue that from abductive logic, human rights are useless category if you judge them consequentially and historically

It seems, like many from Marx to later liberals, argued abductively for the principles of Mill.  Debate is likely to increase knowledge, even if it is knowledge of the actual position of one’s enemies. Relying on institutions or the state can be used by people who control them or fund them against you.  So instead of increasing the access of a stage of the marginalized at the expense of reactionaries, one may simply lose the stage in a way factors the powerful.

Note that this can’t be deductively argued or even argued on absolute utilitarian grounds. It can be argued as likely inferences to outcomes in a system.  The problem with Hanlon’s argument is that it places either consensus or funders in charge of deciding who is of high value.  It is unlikely that they would side with either side at the current. However, I cannot argue this as absolute principle of reason. I can’t root in the seeming rock hardness of ontological status, epistemological certainty, or even historical progression.  I can only argue it pragmatically based on abductive logic applied with historically most likely outcomes in a system.

If we save Mill’s point, we actually cannot protect or determine on the system he used to make that point.

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