Positive Liberty and Social Rights: Freedom of Speech on Campus

On university campuses, on the whole, people should be able to express their minds freely and openly, even if they hold contrarian opinions. Campuses are generally places of intellectual inquiry and inquiry can only thrive in an environment in which different points of view are debated in a fair-minded way.

The Meaning of Harm

The issue of free speech becomes thorny when speech itself is viewed as causing undue harm to certain individuals or groups on campuses. Even philosopher John Stuart Mill, an influential historical proponent of civil liberties, draws the line at harming others (Mill calls this the harm principle). But what does harm mean here? Victor Bruzzone has provided a nuanced discussion of this principle here, with a particular focus on Mill’s ideas.

Some people construe harm in a narrow manner, to mean physical harm or extreme non-physical harm (e.g., a bomb scare hoax, manufactured for political purposes). Others include psychological or social harms, such as being exposed to graphic images of abortion. So where should we draw the line?

To figure out the boundaries of free expression on university campuses, we need to ask two questions:

(1) How can the expression of ideas cause harm on campus?
(2) If it does, does this justify limiting the expression of ideas?

The Expression of Ideas can Cause Harm

The expression of ideas can cause harm when it takes the form of a speech act, as described by philosopher of language J. L. Austin. Speech not only describes reality, but can change the social reality in which one utters those words.

For instance, some may express the idea that race and intelligence are inherently related in a deterministic manner and this may cause others to mistreat an individual or group. As Bruzzone has shown, language can therefore “[contribute] to cultural value patterns and consequently can strengthen potentially arbitrary social hierarchies.”

Ideas can prevent individuals or groups from the exercise of self-determination, i.e. from controlling their own destinies. Essentially, ideas can infringe on a person’s positive liberty. According to Canadian philosopher Charles Taylor, “we cannot say that someone [exercises positive liberty] … if he is … paralyzed by the fear of breaking with some norm which he has internalized but which does not authentically reflect him.” Essentially, positive liberty is a capacity to do something. As Bruzzone has shown, language can directly affect individuals, leading to “feelings of humiliation and ultimately, a real systematic disadvantage such that individuals are unable to pursue their life in a satisfying and healthy way.”

For instance, psychologist Arthur Jensen was a proponent of the idea that genetic factors are largely responsible for differences in intelligence and he proposed that intelligence is innately determined by race. Does the harm caused by the propagation of Jensen’s ideas on campuses justify limiting the expression of these ideas? Some would reply yes on the grounds that such ideas infringe positive liberty.

In his classic essay “Two Concepts of Liberty,” Isaiah Berlin contrasts negative liberty and positive liberty. Negative liberty, according to Berlin, is the absence of external constraints on what a person can do: it is about having more choices and opportunities to act without interference. This is a liberty comprising of freedom from interference, as advocated by Mill and T. M. Scanlon. In this view, the propagation of Jensen’s ideas is a choice/opportunity that should be free from external interference or censorship, especially since the expression of such ideas imposes no external constraints on others (i.e. the ideas neither constitute threats nor coercive demands) and therefore the speech acts involved do not infringe on anyone’s negative rights.

Positive Liberty Better Supports the Free Expression of Ideas

While some, mostly notably Berlin, have criticized positive liberty for allowing the suppression of certain ideas, it is the preferable way of conceiving liberty if we value the free expression of ideas. Positive liberty can conceptually support the free expression of ideas on campuses through the idea of a free marketplace of ideas.

In A Humane Economy, economist Wilhelm Röpke argues:

The truth is that a society may have a market economy and, at one and the same time, perilously unsound foundations and conditions, for which the market economy is not responsible but which its advocates have every reason to improve or wish to see improved so that the market economy will remain politically and socially feasible in the long run. There is no other way of fulfilling our wish to possess both a market economy and a sound society and a nation where people are, for the most part, happy.

Röpke’s equivalent in political philosophy is positive liberty theorist T. H. Green. Green embeds a fundamental notion of social cohesion within his discourse of rights, i.e. he is concerned with social rights. For Green, “A right is a power of which the exercise by the individual or by some body of men is recognised by a society either as itself directly essential to a common good or as conferred by an authority of which the maintenance is recognised as so essential.” A shared common good, i.e. a shared conception of a collective end, is the foundation for both society’s existence and for an individual’s existence as an autonomous person. So, a right, in Green’s view, is a capacity to live in society: to live with others and contribute to their good as well as to one’s own.

Green’s definition of positive liberty addresses what Röpke calls the “perilously unsound foundations and conditions for which the market economy is not responsible.” The free marketplace of ideas requires institutional support, in order to create the conditions necessary for the free and open exchange of ideas. This exchange cannot take place without the support of university campuses, which must cultivate fair-minded critical thinking.

Economist Walter Eucken, who is from the same economic school of thought as Röpke, argues that the free market is best served through a legal and institutional framework that refrains from direct interference, but provides the well-functioning, competitive environment in which individuals and groups can best carry out their commercial affairs.

If we use Green’s conception of positive liberty to suggest an analogy with free speech on campus, we must conclude that the role of university campuses is to promote and encourage fair-minded critical inquiry without the undue censorship of ideas.

The Role of Universities

A commitment to free speech on campus requires non-interference. It also requires strong institutional support for the promotion of rigorous inquiry. Just as the state, as Eucken argues, should uphold the rule of law, private property rights, and contract rights in order to ensure the stability of the free market, university campuses should uphold institutional programs and services, both academic and non-academic, that ensure the stability of the free marketplace of ideas.

This would entail guaranteeing that no singular voice co-opts all or most of the discussion on any given topic. No one individual or group has the right to severely dominate an area of discussion, so as to suffocate dissent. This is why Green’s conception of rights make sense as the basis of a campus commitment to free speech.

A conception of negative liberty would allow for nearly unbridled free speech, which could result in an unstable marketplace of ideas, potentially breaking down open forums. But Green’s idea of positive liberty demands that the campus supports the creation of a stable marketplace of ideas, with open forums for debate. Preventing the monopolization of an area of debate by a single viewpoint must form an exception to the principle of non-interference.

My right to speak my mind and express ideas is grounded not on individual rights but on a fundamental a priori social cohesion, because, as Charles Taylor points out: “Man is a social animal, indeed a political animal, because he is not self-sufficient alone, and in an important sense is not self-sufficient outside a polis.” Any restriction of my right to free speech must rest on the recognition of the fundamental sociality embedded in freedom of expression.

This means that the few instances that justify restrictions are those that undermine a shared common good—i.e. the shared conception of a collective end that is the foundation of a society’s existence. For university campuses, this would mean the expression of ideas that subvert the very institutional supports that ensure the stability of the free marketplace of ideas on campus: such as the monopolization of specific ideas. In this, they should be guided by the principle outlined by William James in his essay, “On a Certain Blindness in Human Beings”: “Hands off: neither the whole of truth nor the whole of good is revealed to any single observer … It is enough [that] each of us … should be faithful to his own opportunities … without presuming to regulate the rest of the vast field.”

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  1. “This means that the few instances that justify restrictions are those that undermine a shared common good—i.e. the shared conception of a collective end that is the foundation of a society’s existence”

    Rooting ideas of Free Speech and the right to expression on some notion of social cohesion or a ‘shared conception of a collective end’ is fraught with problems.

    It’s fine if the people interpreting are nice liberals, but it’s not difficult to think how conservative Xtians, Islamists, Erdogan or Orban would interpret this, or indeed SJWs towards ‘terfs’ or someone promoting ‘white Surpremacy’. Plus I don’t think when considering the principles behind free expression that Campus’s need be treated as somehow apart from wider society.

    It really isn’t hard to picture all manner of people who oppose free expression of ideas justifying their attempts at silencing people on grounds that these people with their ‘apostasy’ ‘homosexual agenda’ ‘transphobia’ ‘racism’ etc “undermine a shared common good”, and as such silencing isn’t really an attack on free speech.

    Notions of a shared common good change, often through the courage to challenge the orthodoxy of the time.

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