On the Relation Between Chapters One and Two of John Stuart Mill's On Liberty

• Author: Frederick Schauer
• Pages: 571-592

ON THE RELATION BETWEEN CHAPTERS ONE AND

TWO OF JOHN STUART MILL’S ON LIBERTY

FREDERICK SCHAUER*

John Stuart Mill‘s essay On Liberty is an icon of the liberal tradition.1

It is without question the most important articulation of the classical liberal

(or, if you will, libertarian) position that the state has no legitimate

authority to restrict the actions of an individual except when those actions

produce harm to others. And On Liberty is also among the preeminent

defenses of a distinct principle of freedom of speech, or, as Mill expressed

it, a liberty of thought and discussion.2

Mill‘s defense of the so-called Harm Principle is the chief concern of

Chapter One of On Liberty, where Mill sets out and explains his ―one very

simple principle‖:3

[T]he sole end for which mankind are warranted,

individually or collectively, in interfering with the liberty

of action of any of their number, is self-protection. 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. His own

good, either physical or moral, is not a sufficient warrant.4

Chapter Two of On Liberty, entitled ―On the Liberty of Thought and

Discussion,‖ appears initially to address a different topic. That is, although

a liberty of thought might well be understood to be an instance of the self-

regarding conduct that is the subject of Chapter One,5 ―discussion‖ seems

different. Discussion, which in its standard sense for non-delusional

Copyright © 2011, Frederick Schauer.

* David and Mary Harrison Distinguished Professor of Law, University of Virginia.

This essay was initially presented as a comment on Professor Vincent Blasi‘s John E.

Sullivan Lecture at the Capital University Law School on April 8, 2010. I am grateful to

the students and faculty at Capital for their hospitality and to Vince Blasi for many years of

stimulating conversation about freedom of speech and much else.

1 See JOHN STUART MILL, ON LIBERTY (David Bromwich & George Kateb eds., Yale

Univ. Press 2003) (1859).

2 See id. at 86–120.

3 Id. at 80.

4 Id.

5 On Mill‘s distinction between self-regarding and other-regarding conduct, see R.J.

Halliday, Some Recent Interpretatio ns of John Stuart Mill, 43 PHIL. 1 (1968).

572 CAPITAL UNIVERSITY LAW REVIEW [39:571

people typically requires multiple participants, is almost by definition the

kind of other-regarding conduct that affects others. Moreover, although

most communications, just like most actions, are harmless, the capacity of

discussion, expression, speech, printing, and other forms of public

communication to cause harm in the ordinary sense of ―harm‖ appears

plain.6 Damage to reputation, mental anguish, exposure of embarrassing

facts, and persuasion to commit antisocial acts, among many others, are the

kinds of harmful consequences sometimes produced by the communicative

acts of others.7 Thus, it seems simply mistaken to treat communication as

a category of harmless actions, or even, albeit more controversially, as a

type whose tokens are statistically less likely to be harmful than the tokens

of the type we call actions.8 Consequently, there appears initially to be

some tension between Chapters One and Two of On Liberty. More

specifically, it is by no means clear whether Chapter Two and the liberty of

thought and discussion were intended by Mill (or are best understood) to

represent an example of the kind of self-regarding conduct he discussed in

Chapter One, or if instead Mill believed that the liberty of, especially,

discussion was, in effect, an exception to the principles set forth in Chapter

One, to be protected not because of its harmlessness, but, and for other

reasons, despite the harm it could cause.

In his Sullivan Lecture, Professor Blasi offers an insightful and

imaginative interpretation of Mill‘s views on harm and the consequences

of thought and discussion that render Mill‘s arguments in Chapters One

6 My own views on the harm-producing capacities of communication, and the

implications of that fact for free speech theory, are set out in, inter alia, FREDERICK

SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIR Y 10–12 (1982) [ hereinafter SCHAUER,

FREE SPEECH]; Frederick S chauer, Is It Better to Be Safe tha n Sorry?: F ree Speech and the

Preca utionary Pr inciple, 36 PEPP. L. REV. 30 1 (2009); Frederick Schauer, The

Phenomenology of Speech a nd Ha rm, 103 ETHICS 635 (1993) [hereinafter Schauer, The

Phenomenology]; Frederick Schauer, Uncoupling Fr ee Speech, 92 COLUM. L. REV. 1321

(1992).

7 See SCHAUER, FREE SPEECH, supra note 6, at 10.

8 An assumption to just this effect—―[i]t is almost certainly true [that] in the

overwhelming majority of cases that speech is less immediately dangerous than conduct‖—

can be found in MARTIN H. REDISH, FREEDOM OF EXPRESSION: A CRITICAL ANALYSIS 1 9

n.48 (1984). Once we recognize that almost all conduct is not dangerous, whether

immediately or otherwise, however, the factual basis for Redish‘s conclusion appears

elusive.