J.S. Mill and the torch of the eternal garbage fire

Free speech has many false friends and straw-enemies. Some of those misapprehensions come from the land of freedom and milk and honey and stars and stripes and things. Some come from inside of the Canadian academy. Some call themselves leftist, some right-wing. The conversation, at present, is all a bit warped. But if you wanted to get things straight, you could also consult the classics if you wanted, right from the horses’s mouth — Mill’s On Liberty.

On Liberty is sometimes mischaracterized as a kind of free speech absolutism, i.e., for whom one cannot limit speech on the basis of content, and/or which is directed only at the proprieties of government intervention and not social justice among individuals. If it were those things, it would be boring and wrong. In fact, though, Mill’s argument has all sorts of nuances and compelling features that, at the very least, make it worthy of continued attention. His endorsement of freedom of speech is not absolutist, since the principle of liberty is a function of his harm principle. Hence, he does endorse limitations to speech, and does believe it is sometimes justifiable to sanction the speech of others. You just have to be sensitive to the qualifications.

The first two limitations on speech worth mentioning right off the bat, and which many people reading this already know:

a) Only applies in modern contexts and between adults. Mill’s defense of free speech is a point about how we ought to design modern political institutions and culture which are responsive to reason. For roughly the same reason, a parent can limit the speech of a child, since children are ostensibly not capable of rational conversation. Or so says the parenting manuals in Victorian era England, presumably.

b) Contextual limits. The defense of freedom of speech does not prevent us from limiting the speech of someone who is inciting of mob violence (e.g., the corn-seller’s case). Plausibly enough, the American Court offered the example of yelling fire in a crowded theater as speech that can be sanctioned. (Implausibly, this was done to justify government sanctions on wartime dissidents.)

So, with those caveats out of the way, the question is: “Can we, people living in relatively evolved political societies, and speaking in non-incitement contexts, ever sanction someone for the contents of their speech?”

The answer depends on who you are — a government or a private citizen. For governments, the answer is pretty much a flat ‘no’. A government needs to lay off imposing sanctions on individuals for the things that individuals say. Hence, Mill thinks that blasphemy laws, and even libel laws, are legislatively wrong. An interesting additional question is whether or not legal restrictions on hate speech — e.g., Canadian restrictions on hate propaganda — are directed at harms based on content or context. (FWIW, my inclination is to regard propaganda as essentially contextual in nature, and expressed hatred as intending incitement, and therefore to see it as analogous to the corn-seller’s case. But this seems to be a matter of interpretation, and reasonable people may interpret it differently.)

Some of the people who call themselves libertarians seem to think that freedom of speech only concerns governmental regulations, not interactions between private citizens. But this is not so; private citizens are obliged to respect freedom of speech as well. It is just that their internal calculations have to be a bit more nuanced.

Consider the fact that there are many kinds and qualities of bad effects that we can visit on others when we target them with speech:

Hurt vs. harm. Suppose there’s a difference between subjective hurt and objective harm. We can distinguish them as follows: an action produces subjective hurt when the act produces a negative effect on the patient, but only on the condition that the patient permits themselves to be hurt; while an action is an objective harm if the negative effect is visited on the patient irrespective of whether or not they recognize it. So, you can’t necessarily be held to account just because a person chooses to interpret a turn of phrase in a way that makes it appropriate to feel slighted. The idea is that you are not necessarily blameworthy if you happen to hurt someone’s feelings, so long as they are not otherwise worse for the wear. In contrast, there is a prohibition on intending to cause objective harm to others. So, e.g., even if libel laws make for bad governmental policy (according to Mill), private citizens are doing wrong if they lie about others and cause reputational damage.

Acts vs. facts. Mill notices that there’s a difference between objective harms related to (a) the statement of facts about the target, and (b) objective harms delivered through the act of speech. For an example of the first kind of harm: by calling a thief “thief”, you might end up causing the thief harm, in a sense; but the harm issues from the facts, not from the act of talking about it. And it is fine to do someone objective harm just by reporting accurately on the vile things they’ve said or done. If a pizza guru says, “I hate gay people”, then I can tell ordinary decent folks what the pizza guru said, and they can boycott him. And if a whistleblower says, “My organization is killing people with drones”, and they can prove it, then that speech is permissible, too, and so they ought not be sanctioned by the government.

On the other hand, you cannot just go around sanctioning people for saying things you don’t like, causing them objective harm through the creative powers of speech. That is, you shouldn’t engage in “vituperative” speech: by which he seems to mean gratuitous vilification, heckling and shaming, character assassination, and so on. He argues that the mischief that arises from these sorts of conversational bludgeons “is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions. The worst offence of this kind which can be committed by a polemic is to stigmatise those who hold the contrary opinion as bad and immoral men.” Instead, you should engage in the “real morality of public discussion“, which is to say, you should engage in good faith: “giving merited honour to every one, whatever opinion he may hold, who has calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells, or can be supposed to tell, in their favour.” In other words, you should not contribute to the ongoing eternal garbage-fire of life on Twitter.

But, once those speech acts are taken off the table, is there any kind of speech left? Is all of our discourse turned into anodyne or inert? No — you are only barred from intending objective harm on the basis of the speech acts independently of the facts, i.e., through vituperative speech. Everything apart from that is fair game. You can speak falsely, and can hurt feelings. What you can’t do is engage in bad faith.

At any rate, this was my reading of Mill. Maybe you have your own interpretation. Either way, I think it is well worth revisiting his essays every so often, because it rewards close reading.

A critique of public reason (II)

In the previous post I discussed the idea of public reason. In this one I offer a few modest rebukes. Though critical in aim, it is in the same political tradition, a sympathetic attempt to curate conditions for the flourishing of democracy. The post has three parts: first I say why public reason seems on the ropes to us today; and second, a reminder that since public reason was inclusive, not fanatical, it can help to meet the challenges of anomic life in our century. Third, I offer three notes on the relation between public reason and publicity. I suggest that, though Rawls can deal with these three complaints when taken as a corporate whole, the three points together leave a trail of breadcrumbs that point to a compelling objection to his conception of political justice.

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Contemporary democratic debate is sharply polarized, and these divisions can be explained in a ‘whiz-bang’ vernacular. Mainstream political discourse is held in thrall by punchy defects — junk values, hot takes, echo chambers, alternative facts, fake news.

A diagnosis of our bimodal status is hard to avoid and easy to come by. People of conscience have both the means and motivation to revisit injustices previously hidden from public view. We now have the critical resources to think about the systematic effects of speech. They come in many flavors: individual bids to sneaky collective acts (e.g., dogwhistles), offenses with tacit collective force (e.g., micro-aggression), or plain old mindfucking (e.g., gaslighting). Social justice tempts us to take a stance of hypervigilance, where brinksmanship is the strategy most fit for political discourse. And with great vigilance comes great dissensus, as hard bargains delay the renegotiation of a social contract. Meanwhile, people without conscience have enormous power and wealth, having consolidated their holdings into the hands of the collective few. The enemies of freedom and equality have nowhere to hide, so operate in public and with impunity. And while they will eventually get their due, the lurking threat of global warming may undo us.

Which is all to say it is difficult for us to see the point of liberal justice. For much of the liberal imagination is directed to remedy injustices in a life of reasonable civic association. Some small bit of it — not much — is directed at the process of bargaining along the way. This is, I think, is not the fault of the liberal contractualist ideal. But it does feel that public reason is an adjunct to institutional justice, a peripheral platitude. At worst, a critic can say, political liberalism helped to distract us from public facts on common ground. It is worth asking whether the critic has got it right.

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Public reasons are by and for the public good, and publicized. For Rawls, democratic institutions of governance are based on public reasons. As seen, Rawls argues that a reasonable person — that is, a responsible and responsive person — should participate in civic life by putting public reasons first. In contrast, non-public reasons characteristically belong to social associations of all sorts; they are by and for special interests or organizations, and/or done for the good of such interests (and/or offered behind closed doors). We said these reasons are public-facing, and potentially publicized, but are not public reasons.

It’s worth noting that Rawls is not a fanatic about public reason. That is, the mature Rawls thinks associative reasons are not excluded from conversation, regarding the constitutive requirements of a democratic form of government. For Rawls, following Solum, is aware that many advocates of public reason have associative — even religious — motives. He does not deny that comprehensive doctrines play a role in negotiating a social contract. Yet the important point is that associative reasons play second-fiddle to public ones. Comprehensive doctrines matter only if they provide motivation and support for public reason. So it trivially follows there are two kinds of associative reason: the public-facing and the private-facing. (He might not use those terms, but I think he would agree to the distinction.) In that idiom, we can say our political moment is explained in part by the rise of self-indulgent associative reason.

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There are a bunch of places where you can take issue with the Rawlsian political programme. You can criticize the conception of justice on libertarian or communitarian grounds, or you can criticize the approach to political representation on republican ones, or you can criticize the ideal-theoretic aspects of the programme. Some socialists have impugned it for its lack of a class analysis, and some feminists have taken issue with the elimination of the family from the basic structure of society. All these points are cogent, and all of them have potential limitations. But, since I am grinding my own axes, I would like to highlight three complaints, as they are distinctively related to the ideal of publicity and associative reason.

1. Rawls says that political societies are communities ordered by reason in order to secure terms of cooperation. Ostensibly, those terms of cooperation are ones called ‘fair’. But you have to be an an agreeable political mood to agree with his formulation. That is, you’ve got to say there are good answers to collective problems, and/or that we are in a position to act on those good answers. So, for instance, someone in the pessimistic mood might think of political societies as the rule of alpha predators, whose rule is unrelated to reasoned claims of fair cooperation. Since those assumptions are needed to sustain a collective political will, it is always pertinent in politics to invite pessimists to be more reasonable. But anyway, this objection is not fatal, as there is no reason to think that Rawls’s liberalism is any worse off than anyone else in the face of pessimism. Even survivalists assume they can survive somehow; even libertarians need to trust the sanctity of voluntary contracts. Pessimism is political nihilism, and it does not discriminate between liberals anyone else.
2. Rawls assumes that all nonpublic reasons are associative. But there is a third category — the category of private reasons. Rawls says “there is no such thing as private reason” (220 fn.7). If we put aside Wittgenstein’s nostrums about private rules. I do not know what he must mean, as he does not motivate that denunciation. Here is why. Suppose we were to follow Sissela Bok, in saying privacy is a personal claim of protected access to information. If so, then it sure looks to me like you can claim that you have special access to proprietary information, while potentially leaving your reasons unarticulated in public. The demand for candor is never ever comprehensive. e.g., when asked by government, “Are you gay?”, you can decline to answer the question, and also legitimately denounce it having been asked — and, most importantly for present purposes, you can legitimately leave your further reasons for exercising that discretion unarticulated if you so choose. That does not mean that no public reasons could be articulated, i.e., as it is unfair and inappropriate to force someone to out themselves. Nor does it mean that a political society can survive on the basis of private reasons alone. It is only to say that, yes indeed, there are such things as private reasons, just in case some of my reasons ever conceivably belong only to me. That being obvious, it is likely Rawls meant something else by private reason, but I do not know what it is, so leave the complaint at that.
3. Rawls believes that the modern constitutional Court is exemplar of an institution of public reason. The Court is obliged to fit its rulings into the “higher law” of the political system — that is, to fair terms of cooperation — and in that sense the Court is more democratic than executive and legislature. But does it on peculiar legal grounds. So, Rawls’s expression, ‘higher law’, is a Thomistic turn of phrase, and it makes Rawls (himself raised Catholic) seem like he is a natural lawyer. Were that true, it would be disquieting for us with positivist sympathies. Luckily, though, this is not necessitated by the text, since Rawls could equally well be saying that there is an unwritten constitution (perhaps secondary rules of recognition), and this is not the same thing as natural law. Moreover, he explicitly calls himself a ‘dualist‘ about judicial review, which I read to mean, he straddles the line between unwritten and written law. The difference, it seems, is that the written constitution is expressed as a system of public reason interpreted through ordinary court procedures and interpreted as conventional expressions of the constitutional enactment as amended, while unwritten laws are interpretations done in due course that are at the very least public-facing associative reasons, if not fully public ones.

Taken in isolation, these criticisms only limit and constrain, if not augment, his overall view. (1) Yes, political liberalism cannot be defended to the pessimist, because the embers of conscience and solidarity cannot blaze in such sodden wood. But that is a persisting problem in politics from every angle and ideology. (2) Private reasons are vitally important in many contexts, and in public they are indistinguishable from fiat. Yet we can explicitly state in public reason there is a right to self-govern. So, we can accommodate and honor private reason from a public point of view. (3) The idea of legal dualism in judicial review is interesting, and plausible, and shared by others — but it looks to be a detail worth clarifying for legal philosophers, not itself an irremediable defect.

It is only when the critiques are considered as a set, that we get a potentially cogent objection to Rawlsian justice. Suppose (as one might say) private reason is constitutive of political liberty. If so, then our device of representation — the original position, for Rawls — should properly encode that ideal in its procedure. But perhaps political liberty does not have a place in the original position — at least, not in the way that equality is encoded in it, as a set of rules that are endorsed equally under equal ignorance. At present, the only sense that original citizens are free is they make a choice without coercion. But suppose, to truly honor the ideal of freedom, original citizens be given a choice in mood. It follows that we would need to consider whether reasonable people can decide to be pessimists — and then we should demonstrate that even originally positioned pessimists will follow A Theory of Justice. If one could make that argument, then that is all well and good; but if not, Rawlsian theory would need to consider how seriously it thinks of liberty as an ideal.