A thinker-based approach to freedom of speech.

• Author: Shiffrin, Seana Valentine
• Position: Symposium: Individual Autonomy and Free Speech

INTRODUCTION

Many contemporary autonomy theories of freedom of speech champion the perspective and freedom of just one side of the communicative relation--usually, the speaker or the listener(s). Such approaches seem to neglect or subordinate the autonomy interests of the other relevant parties. Other autonomy theories do not privilege one perspective on the communicative relation over another, but strangely treat the speakers' interests and the listeners' autonomy interests as rather discrete entities--disparate constituents both demanding our attention. Both strands gloss over a source of justification for free speech that both connects the two perspectives and recognizes the wider foundations that underpin their value (by contrast with the more narrow connections drawn between them by democracy theories). Specifically, both approaches celebrate one or more external manifestations of thought but do not focus on the source of speech and cognition--namely the thinker herself--and the conditions necessary for freedom of thought. I submit that a more plausible autonomy theory of freedom of speech arises from taking the free thinker as the central figure in a free speech theory. We should understand freedom of speech as, centrally, protecting freedom of thought.

Hence, in this essay, I propose to sketch a particular sort of autonomy theory of freedom of speech, namely a thinker-based foundation for freedom of speech. Although this account does not capture all of the values of freedom of speech or yield a comprehensive theory of freedom of speech, a thinker-based foundation can provide a stronger and more coherent foundation for the most important free speech protections than rival free speech theories, including the more common speaker-based or listener-based autonomy theories. (1)

In saying a thinker-based foundation undergirds the most important free speech protections, I mean 'most important' in a normative sense, and not in the sense that they are necessarily acknowledged as such, or at all, in contemporary free speech doctrine. (2) My paper aims to identify strong theoretical foundations for the protection of free speech but not to provide the best theoretical account of our system or our current practices of protecting (or failing to protect, as the case may be) (3) free speech. Articulating a theory of free speech along the former, more ideal, lines provides us with a framework to assess whether our current practices are justified or not, as well as which ones are outliers. An ideal theoretical approach also supplies both a measure for reform and some structural components to form the framework to assess new sorts of cases.

Which freedom of speech protections figure among the most important is, of course, contested. My position in that debate is that a decent regime of freedom of speech must provide a principled and strong form of protection for political speech and, in particular, for incendiary speech and other forms of dissent, for religious speech, for fiction, art--whether abstract or representational--and music, for diaries and other forms of discourse meant primarily for self-consumption, and for that private speech and discourse, e.g. personal conversations and letters, crucial to developing, pursuing, and maintaining personal relationships. (4)

Further, all of these forms of expression should enjoy foundational protection, by which I mean there should not be a lexical hierarchy of value between them, nor should the protections for some depend dominantly on their playing an instrumental role in securing the conditions for the flourishing practice of another. To put it more pointedly, an adequate free speech theory will avoid the convolutions associated with the more narrow democracy theories of freedom of speech and their efforts to explain why abstract art and music should gain free speech protection. Although a case could be made that the freedom to compose and to listen to Stravinsky is important to developing the sort of open personal and cultural character necessary for democracy to flourish or that it feeds the "sociological structure that is prerequisite for the formation of public opinion," (5) that justification is strained and bizarrely indirect. (6) In any case, the right of Stravinsky to compose and of audiences to listen (or to cringe in non-comprehension) should not depend upon whether The Rite of Spring breeds democrats or fascists, or whether it supports, detracts from, or is superfluous to a democratic culture. (7)

A good free speech theory should identify a non-contingent and direct foundation for its protection. On the other hand, protection for commercial and non-press, business corporate speech is a less central matter, one that reasonably may involve weaker protections and may reasonably rely heavily on more instrumental concerns. A good free speech theory should explain why commercial and business corporate speech may be different and why arguing for their protection may be a less straightforward matter.

Briefly put, I believe these desiderata are best satisfied by a thinker-based free speech theory that takes to be central the individual agent's interest in the protection of the free development and operation of her mind. Legal materials (by which I mean to encompass laws, regulations, court rulings, and resolutions) and government activity inconsistent with valuing this protection are inconsistent with a commitment to freedom of speech. In my view, legal materials or activity may be inconsistent with valuing this protection in three main ways: (1) the legal materials or the government activity may, on their face, ban or attempt to ban the free development and operation of a person's mind or those activities or materials necessary for its free development and operation; (2) the effect of the legal materials, or of the activity, may objectionably interfere with the free development and operation of a person's mind; (3) the rationale for the materials, or the activity, may be inconsistent with valuing this protection. (8)

In developing this position I will proceed from the assumption that, for the most part, we are individual human agents with significant (though importantly imperfect) rational capacities, emotional capacities, perceptual capacities and capacities of sentience--all of which exert influence upon each other. (9) I will also assume that our possession and exercise of these capacities correctly constitute the core of what we value about ourselves.

I will not say much to defend these assumptions. I do not regard them as especially controversial. (To address the concerns of those who disagree would require a longer digression than seems appropriate here.) Indeed, many popular theories of freedom of speech only make sense if the individual mind and the autonomy of its operation (a notion I will say more about below) are valued and treated with respect. If we did not regard the autonomy of the individual mind as important, it is hard to see why we would value its expression or outputs in the way and to the degree that truth theories or democratic theories value speech. The same holds true of speaker-based and listener-based theories. (10) Still, each theory shares the presupposition that the autonomous thinker fundamentally matters; speaker, listener, and democracies theories start from an intermediate point and hone in on one activity of the thinker, rather than on the thinker herself. Reasoning from the standpoint of the thinker and her interests can yield a more comprehensive, unified foundation for much of the freedom of speech protection than is yielded by starting from a more partial intermediate point.

My aim in what follows is to show the supportive connection between valuing ourselves as so described and: (1) valuing speech; (2) valuing freedom of speech; (3) regarding speech as, in some politically and legally normative respects, special. With respect to this last item, contra Fred Schauer, I deny that an autonomy theory of free speech must show that speech is special or unique with respect to its relation to autonomy, in order to justify strong protections for freedom of speech. It may succeed at that justificatory project while articulating values that cast a broader net encompassing other forms of autonomous activity. (11) Indeed, I regard it as a general strength of autonomy theories that they explain the continuity between speech protections and rights of intimate association. But, although the plausibility of a theory of strong protections for freedom of speech does not depend upon its showing that speech is special, nonetheless, I do think speech occupies a special place in the life and politically germane needs of the autonomous thinker. It is worth showing how it is both special and, at the same time, how it connects to other autonomy interests.

AUTONOMOUS AGENTS AND FREEDOM OF SPEECH

Having stated my aspirations, let me move on to the argument. I begin with an explicit, albeit perhaps partial, elaboration of the interests of autonomous thinkers[degrees]

If we do value ourselves as rational agents with the capacities previously described, then I submit we should recognize a more articulated (though sometimes overlapping) list of interests that emerge from our possession of these valuable capacities.

Namely, every individual, rational, human agent qua thinker has interests in:

1. A capacity for practical and theoretical thought.

   Each agent has an interest in developing her mental capacities to be receptive of, appreciative of, and responsive to reasons and facts in practical and theoretical thought, i.e. to be aware of and appropriately responsive to the true, the false, and the unknown.

2. Apprehending the true.

   Each agent has an interest in believing and understanding true things about herself, including the contents of her mind, and the features and forces of the environment from which she emerges and in which she interacts.

3. ...