Tuesday, February 19, 2019

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Two Principles of Free Speech

Late in life, in a kind of biographical postscript, Freud described himself as returning to philosophical puzzles that had caught and held his attention when he “was a youth, scarcely old enough for thinking.” Now that I am old, scarcely young enough for the rigors of long-form thinking, I find myself trying to re-call, tell again — hopefully in a readably brief form — my free speech story.

First of all, why should speech be free? And, presuming a sensible answer can be given to that core theoretical concern, then how much free speech? And what kind?

In 1984, I wrote a position paper for the B.C. Civil Liberties Association on these questions which was, after much debate and revision, accepted by the Board of Directors. In those days, such a debate stretched over more than one very protracted session, and attracted a full room of directors, with the largest proportion of them being either philosophers or legal academics.

Alexander Meiklejohn's Free Speech and its Relation to Self-Government.

Alexander Meiklejohn’s Free Speech and its Relation to Self-Government.

I was of the American “absolutist” school, associated with Alexander Meiklejohn, and his students Joseph Tussman and Robert Rowan. Joe was chair of the philosophy department at Berkeley — though he also taught constitutional law in the law school — while his friend Bob had been my Phd thesis supervisor at UBC. I was the acolyte of these men, passionately attached to their teachings. I always had my well-thumbed and annotated copy of Meiklejohn’s Free Speech and Its Relation to Self-Government to hand, serene in my knowledge that its defence of free speech was but one element — indeed, Meiklejohn did not take up the specific issues of free speech until he was in his nineties — of his comprehensive theory of the democratic commitment.

Board members David Copp (now professor of philosophy at the Cal Davis campus) and Alister Browne (now one of Canada’s pre-eminent medical ethicists) were strong advocates of the Utilitarian approach, where freedom of speech was defended on “best policy” grounds, as having proven throughout history, that those societies which valued and protected an open forum were ultimately rewarded with a deeper and more resilient grasp of the truth. And the truth about the world is, of course, of great instrumental utility in guiding the actions of those who seek to generally maximize utility. As John Stuart Mill put it in his On Liberty, freedom of thought and expression are fecund utilities; utilities that bring many others in their train; as does, we might say, the fecund utility of physical and mental health.

J.S. Mill, On Liberty.

J.S. Mill, On Liberty.

On Liberty was published in 1859, a date remarkable for the appearance of two other ripened fruits of the Enlightenment: Darwin’s Origin of the Species, and Marx’s Critique of Political Economy. All three of these texts are self-consciously scientific approachs to the great human questions of human identity and human justice.

Mill, in particular, drew his inspiration from the great Enlightenment figure, David Hume. Hume subtitled his masterwork — A Treatise of Human Nature — as “an attempt to introduce the experimental method of reasoning into moral subjects”, making explicit the departure from religion and intuition as an acceptable basis for moral judgment.

One of the great strengths of the Utilitarian approach to freedom of expression issues is that it is but a specific application of what is a comprehensive and general theory of moral living. Something like the standard model in particle physics. Want to be moral? Try to maximize happiness and minimize unhappiness for the greatest possible number of sentient beings over the longest period of time imaginable. Pay close attention to the accuracy of the data going into the calculations, and then it’s all about the consequences. Both David and Alister were students of Don Brown, a great Mill scholar, and long time member of the BCCLA Board, who has written broadly on the seminal Utilitarian texts — most particularly On Liberty. They were serious, subtle, intelligently determined proponents of their approach.

Of course, no sensible theorist could pretend that the expressive freedoms were really and totally “absolute”, but the term was meant to signify that, instead of a “best policy” answer to the “why free speech?” question, Meiklejohnians favoured an “almost no matter what” notion of freedom as being the product of a specific kind of political commitment. Or, when I got really wound up, an existential leap of democratic faith. Indeed, the title banner of the BCCLA newsletter, which Bob Rowan had designed around the format of I. F. Stone’s Weekly, was The Democratic Commitment, symbolically nailing Meiklejohn’s flag to our mast.

As I recall the actual debate, it seems to me that both Bob and Don hung back, the masters leaving the work pretty much entirely to their young. Did we know that we were young? Probably not; but I recall that although I clung to my Meiklejohnian faith to the end, I had to find room in the final version of the paper for more than a passing nod to the compelling features of Utilitarianism. Because, and of course, one cannot forever duck the questions: “and why take the democratic leap rather than any of the other very many possible alternatives? Maybe because you reason that, on the longest term imaginable, it will maximize utility? That is, do you leap or commit without any reference to rational figuring? Or against reason? What is the role for reason in Meiklejohn’s theory of political association?”

We were, I recall, deeply into Truth in those days, and were not to be shrived of our burden of disagreement by the blessing of a vote. Voting was reserved for trivial matters. Principles called for deliberation that was to continue until we could find our footing on common ground. “No shooting from the hip,” as Alister recalls Reg Robson — the BCCLA president in the early 80’s — warning, lest partisan reflex displace the authoritative demands of civil libertarian principle. Was the British Columbia Civil Liberties Association going to be Millian or Meiklejohnian?

Both, it turned out, but the fit was everything, and I’ll begin my explanation of that with a story about a movie.


2. Robin Hood

It was a very old movie of the Robin Hood legend that I saw at my neighbourhood theatre in the early 1950’s. Good King Richard had returned from the Crusades, and it was time for a day of reckoning with the evil usurper John and his minions…and, in a different sense, it was time for a reckoning with the dogged and imaginative loyalists who had held out in Sherwood Forest.

Robin Hood.

Robin Hood.

It was time for a “good news and bad news” session for Richard. The dramatic point of this particular film was, however, that Richard doesn’t get the news. John guards access to the King’s ear, and the Sheriff of Nottingham is opening the mail from the Forest. The consequence of this is that although Richard is King in name and right, John still rules in England. The Merry Men must remain outside Richard’s affection and the law; the tax collectors are still squeezing the crofters; the truth isn’t getting through. By becoming Richard’s censor, John becomes his regent.

It all ends happily, of course, when Robin and the adaptable Maid Marion resort to the disguise of balladeers, and gain an audience with the court as mere entertainers. She gets their attention with a set of arresting dance moves, and he sings a mean song that enlightens the King and saves the Kingdom. The play is the thing, this time not to know the conscience of the king, but to inform it.

Patrick Barr as King Richard in Robin Hood.

Patrick Barr as King Richard in Robin Hood.

It was a good guys and bad guys “Olden Days” show for children; but it had an important element of suspense. We squirmed in our seats waiting for Richard to become himself — to really be King again. And this time it wasn’t a royal kiss that was needed to work the transformation, but that old media magic of “the other side of the story”. Richard is not fully restored to his throne, and he is not genuinely sovereign as long as anyone can prevent him from gaining possession of any information relevant to his function as ruler. And no one but himself, finally, can judge the relevance of any information to his regal role. As long as John is deciding what “merits” Richard’s attention, he is ruling the Kingdom by ruling Richard’s mind.

In fact, the more one thinks about this, the more clearly one sees that the “right to hear”, so to speak, is an essential part of being sovereign. Moreover, it is important to remember that even the most important news — good and bad — can take surprising forms. Even if the Sheriff burns the letter to the editor, the work may be done with a song and dance.

Richard has a job to do as King, and he simply can’t do it justice if he is censored. John’s interference goes, quite intentionally, to the heart of the politics of Olde England. To put this another way, drawing what I think is a vital moral in the process, Richard has a right to an uncensored view of his world — and this right is firmly grounded in his role or function in England. This right is “fundamental” in that he cannot lose it without his sovereignty being fundamentally compromised, as it was in the old film.

To be King, Ruler, Chief, or Sovereign in name is one thing; but being Sovereign in fact can be quite another. The point of our Robin Hood story is that at least one of the constitutive features of a real sovereign is to be uncensored.

Richard’s mind stands at the centre of the Robin Hood drama. Robbed of some of its essential power, deprived of an essential part of the story, its right to information obstructed, it is the star of a modest morality play about ruling and knowing, and about the relationship between knowing and expression. John’s attack on Richard’s ability to effectively govern was an attack on England’s ability to see and know the world in which it must act.

Who rules in Canada? What mind or minds stand at the centre of our political drama Where, for us, is the King Richard lesson to be properly applied?

This question can perhaps best be answered by raising yet another question, only to set it aside. This is the question that all of what is called political philosophy (as distinguished from political science) is concerned with: What is the best form of government? I claim a right to set aside this fundamental problem, because no matter what the wisdom or the folly of the answer provided for it by the people of Canada, they have indeed committed themselves (or, more accurately and pointedly, We have committed ourselves) to a definite answer. This answer is, of course, that the best form of government is self-government or, as it is generally called, democracy.

Many interesting questions can be asked about this answer. Why did the Canadian people — why did we — thus answer the central normative question confronting human beings setting up to live in community? Was it the drift of history? Did we think it the only form of government consistent with full human dignity? Was it simply the political expression of the emergence of certain relations of production? Was there a religious inspiration that made a legislated equality a duty? Were we attracted by the general utility we conceived of attaining?

All of these are real questions; that is, they are intellectually respectable questions that admit of plausible answers. In some cases, they may even admit of true answers. I, like my readers, have my hunches. I insist, however, that we make a self-conscious effort to forego indulging them here. I propose to set aside all of these interesting matters so that we can cement our attention to the central significance of the fact that an answer has already been provided and a commitment entered into.

Because democratic life, like war or parenthood, has a logic that may be only contingently related to the forces or rationales that moved its recruits. Once in, the more important question isn’t how you got there, but what being there means. The democratic commitment deserves attention in its own right. What have we gotten ourselves into?

There is, first and most clearly of all, the matter of sovereignty. How do we respond to the alien’s request: “take me to your leader”, when by “leader” it means “ultimate ruling authority”? We might be tempted to head for Ottawa, but an astute alien would be quick to detect the merely representational or derivative character of the authority wielded by the legislators and officials they found there. “Why are they so worried about the electorate?” We might be tricked by a view of the electorate as a set of spoiled-rotten subjects who dare to nag their masters. But a more penetrating political observer would almost certainly guess our secret. The sovereign is the electorate is the people… even if the sovereign people are unevenly aware of either their role or its significance.

I dwell on this matter of the citizen as the sovereign ruler not only because it is a central feature of the argument I am developing, but also because I am convinced that a kind of spiritual amnesia deprives at least some of us of the ability to remember who we are constantly reminded of being. It would, perhaps, really take the unjaded eye of a political tourist to see it freshly and steadily, but the citizens of Canada are not ruled by their municipal councils, legislative assemblies, or by Parliament. These are, as Meiklejohn emphasized, merely among “the instruments that we use in the governing of ourselves.” The democratic commitment is, then, a commitment to government by the sovereign people. What is more, it is one of the few genuine certainties in the moral and political lives of Canadians. However fractious, divisive, and rancorous our disagreement over the many specific issues of our politics, there is no substantial body of Canadians that questions our commitment to being a democracy.

The Robin Hood story establishes the relationship between the expression rights and the task of governance. Richard has to be uncensored if he is to be genuinely, as opposed to merely nominally, sovereign. To be uncensored is one of the necessary conditions — and hence a fundamental liberty, as provided for in our Canadian Constitution — of being a sovereign. In Canada, The People are the sovereign branch of government — the ultimate source of legitimate political authority — and so cannot tolerate censorship at the hands of any of the subordinate branches of their governments. Or, to put it in Meiklejohn’s words, “they must be free because they must govern.” At one point, near the end of his life, Meiklejohn explained this approach to Tussman as a recognition that the the citizenry join the legislative, executive, and judicial branches of democratic government as the sovereign branch. Not the fourth branch, but the first.


3. Two Concepts of Speech

Joe Tussman.

Joe Tussman.

Many years ago, as I was driving Joe Tussman from a lunch with the BCCLA Board to another of his speaking engagements, I tried out a version of the Robin Hood story on him. “Forum Democracy,” he said. “You should call it Forum Democracy to fix attention on the deliberative role of the sovereign citizenry, and the importance of preserving the integrity of their forum — the site of their deliberative lives — from censorship. First order principles should make the title page.”

This is the Meiklejohnian political answer to the “why free speech?” question: the forum of a democratic people must be free because it is the site of the deliberative assembly that is the ultimate source of legitimate authority in their system of government. “How much free speech?” All of it that bears on any of the matters that might engage the attention of a sovereign. Is race important? Should we retain our present form of government? When’s the right age for kids to be come sexually active? Should we start thinking now about non-voluntary euthanasia for demented boomers? Is “Post-Zionism” really a new form of anti-Semitism? Should we be pro-choice or pro-life? And so on. Anything of general public concern, no matter how controversial (in fact, the presence of controversy virtually guarantees the appropriateness of forum protection) or disturbing to many — or even most — of us.

But not every expression is “public”, or appropriately engages forum protection. Much — very much — of the lives of our minds is, quite appropriately, concerned with matters quite apart from res publica. Libel or defamation of individual private persons — “John Doe is a child molester” — may justify a remedy at private law. Doe’s reputation is not a matter of national significance, but it is of the first importance to him. As Rousseau put it, the attention of the Prince is always fixed at the level of generality that informs his legislative purpose and sovereign mood. A law is a formal expression of the the will of a sovereign, while the disposition of cases involving individuals is the concern of magistrates.

But just because a range of thought and expression may not engage forum protection, does not mean that it makes sense to censor it. Rather, the question then is whether or not, all utitilies considered and balanced, the expression deserves the protection of a free and democratic people. Always remembering, of course, that the default preference of such a people is freedom.

Advertising is arguably private speech: speech chained to the motives and purposes of money-making. Buvez Coca-Cola does not advance any proposition or opinion of political consequence. And a broad range of pornographic images — as in, say, the vast collection of images on some of the alt.binaries sites — cannot reasonably be seen as anything more than a visual aid to masturbation. Unless, of course, they may contingently be raised to a grander status when offered to the aspirants at the sperm donation clinic.

It does not make sense to attempt to stretch the category of forum protected expression over the 187,000 images on alt.binaries.pictures.erotica.chicken-fucking, or, for that matter, over presumbly effective (because on balance it “pays to advertise”) admonitions to eat more deep-fried chicken, or buy mining stock in Moose Pasture, Alberta. There are, however, real public utilities that flow from a free market; and sexual freedom — and most particuarly, freedom of sexual imagining, since it is such a large component of sexual living — must be judged to be a source of significant human pleasure.

In this environment, the appropriate approach is utilitarian. Consider the subtlety of this deservedly noted passage on advertising from On Liberty:

Whatever it is permitted to do, it must be permitted to advise to do. The question is doubtful, only when the instigator derives a personal benefit from his advice; when he makes it his occupation, for subsistence or pecuniary gain, to promote what society and the State consider to be an evil. Then, indeed, a new element of complication is introduced; namely, the existence of classes of persons with an interest opposed to what is considered as the public weal, and whose mode of living is grounded on the counteraction of it.

It would be difficult to imagine better advice for distinguishing cigarette advertising from a grocery store flyer alerting us to a great deal on broccoli. It is foolish to apply forum principles to cigarette advertising, and correct to censor it in the interest of preventing tobacco companies from recruiting fresh victims — particularly young victims.

How much free speech in this context? Enough to satisfy the balance of utilities we gain by generally refraining from censorship in the private sphere, but censoring when there are clear, genuine harms that can be prevented through its measured application. Just as long, of course, the censorship remains tightly linked to that just motive, and doesn’t leak over into simple persecution of smokers.

We need two concepts of expression, along with respective principles — forum and utilitarian — for their governance. The attempt to apply forum principles to what I am calling private speech, on Terence’s “nothing human is alien to me” principle, is really an impossible stretch. I was once tempted by this conceptual sin, but effectively gave it up in the dispute with Alister and David.

Similarly, the mis-application of utilitarian balancing to forum speech betrays a deep misappreciation of the demands of the democratic commitment. And this is, by far, the more prevalent error, particularly in Canada.


4. Forum Democracy

When I lived in Berkeley in the mid-60’s, I was struck by the American passion for freedom of speech; iron turned to steel in the furnace of their revolutionary experience, and in the great intellectual turmoil that brought forth their Declaration of Independence and Bill of Rights. You get a feel for it, reading Madison’s first draft of the Bill of Rights — rights which were to ultimately become amendments to the constitutional instrument:

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, one of the great bulwarks of liberty, shall be inviolable.

Inviolable. Not an invitation to get out our slide rules, and begin a calculation of whether or not forum democracy will produce the greatest happiness of the greatest number over the longest period of time imaginable. Which is forever. Madison is crying out for Rortian solidarity in choosing, embracing, committing ourselves to a form of political association within which we will then reason, calculate, figure what laws and policies will be most conducive to our public good.

And, of course, try to persuade our colleagues in the forum to share our vision of the best path forward.

During the McCarthy era, wonderfully evoked in I.F. Stone’s The Haunted Fifties, the infamous House Un-American Activities Committee ran its witch hunt for Communists. (Turns out there really were quite a few Reds, but that is another story.) Meiklejohn exercised his constitutional right to seek a redress of greivances from Congress. Given his well-known socialist leanings, it was a rare act, for those times, of intellectual courage. Maybe a bit of physical courage into the bargain. What he said was that “the American People must be free to advocate a revolution not only in 1776, but forevermore.”

Meiklejohn's What Does America Mean?

Meiklejohn’s What Does America Mean?

Meiklejohn wasn’t disregarding the dangers of Lenin’s The State and Revolution, and the deadly seriousness of the communist conviction that the American state must be smashed rather than reformed. He was declaring that the commitment to free speech was not grounded in some notion that words, unlike actions, could not be ruinously potent; rather it was because of the power of ideas that a sovereign people protected their unconditional access to them. They, like King Richard, must be free because they must govern.

Democracy is not a choice made against reason; reason is neither for or against the democratic idea that all persons are, no matter how contingently different, worth the same, possessed of the same inherent dignity as moral agents, and so not to be formally excluded from participation in their own governance. Meiklejohn doesn’t prove that we should be democrats, anymore than Mill proves that we should be moral. Mill simply says that if we prefer to be moral, we could not do better than disinterestedly seek to maximize utility for all relevant beings. As Meiklejohn insists that if we are determined to govern ourselves, we must be free of interference in the deliberative work of our forum.

Finally, and as I calm down a bit to end this essay on a sober note, I look back on my earlier crack re the spiritual amnesia of the citizenry, unconscious (as John Ralston Saul has so perceptively observed) of their ruling role. What effort has been made, in our educational curricula and institutions, to actually tell them who they are? To prepare their minds for the responsibility of governing by providing them with something like a working knowledge of not just the technological powers of the culture, but the specific spiritual powers of the democratic commitment.

Unsurprisingly, both Meiklejohn and Mill were much pre-occupied with education. Although we tend to think of them in terms of their contributions to the intellectual foundation of Social Democracy, they both identified and insisted upon general, liberal education as the sine qua non of a functioning, responsible mind.

Because, as they both observed, perhaps in more measured language than mine, the alternative to the self-conscious recognition of education as an indispensable political necessity, is all too likely to be nationalism, nativism, and sexism served up as racist, retentionist mind candy that buries thought in an avalanche of bullshit.

It is cruel to say that people get the government they deserve, without the proviso that they get the government that they are capable of understanding. And when that understanding — the power of minds that are liberated from mere creatureliness by education — is absent, the resulting public space becomes a pathetic parody of the deliberative forum that both Meiklejohn and Mill defended.

John Dixon

John Dixon

John Dixon is a past president of the B.C. Civil Liberties Association, and a retired professor of philosophy at Capilano University in N. Vancouver, B.C.

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