Free Speech and Virtue Ethics

The right to free speech, or—as it is more broadly construed—to freedom of expression, is enshrined in Article 19 of the Universal Declaration of Human Rights. However, the devil is in the details: an amendment to this article states that this right carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “for respect of the rights or reputation of others” or “for the protection of national security or of public order, or of public health or morals.”

In other words, there is no such thing as freedom of speech as an absolute, unfettered right. This, most sane people would agree, is a good thing. For instance, you don’t want a hacker to be protected by freedom of speech when he publicly releases the nuclear launch codes of the United States or Russia. It also makes sense to point out that the right to free speech—like any right—comes with responsibilities and duties. If you are a comedian, for instance, you should have the right to make fun of anyone you please. But you have an ethical duty to aim your punches upwards, against powerful people and interests, not downwards against common folks. In the first case, you’re both funny and socially useful; in the second case, you’re a jerk.

Fundamentally, freedom of speech consists in a government’s promise that (subject to certain exceptions) it will not interfere with its citizens’ freedom of speech. This means that free speech is what philosophers call a negative right: the government promises not to interfere, but it is not obliged to provide you with a platform. Private companies are not required to grant such protections—which means that, when people vehemently invoke free speech in response to someone being booted off a social media platform, they are talking nonsense.

The concept of freedom of speech has a long history, reflecting its importance in western thought. It emerged in late sixth-century BCE Athens, and was cherished in the Roman Republic. It was enshrined in the Declaration of the Rights of Man and of the Citizen during the French Revolution of 1789, and in the First Amendment to the US Constitution two years later.

Perhaps the best known modern defender of the right is John Stuart Mill. In On Liberty (1859), he proposes his famous harm principle: “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.” Mill thought that speech ought only to be limited in cases where the speech seems likely to directly cause physical danger, for example when it is an incitement to violence. In all other cases, he believed, one should let bad ideas circulate just as freely as good ones, on the ground that, in the end, truth drives out falsehood. Alas, this is a perfect example of an eminently reasonable philosophical premise that has been flatly contradicted by the empirical evidence. One wonders whether Mill would have revised his stance in the face of social media, alternative facts and fake news.

One of Mill’s crucial points is that offence should never be grounds for restricting speech, because it isn’t really harmful—for example, not in the way falsely yelling “Fire!” in a crowded theatre is harmful. One of the worst ideas that has been proposed in response to this point in recent decades is Joel Feinberg’s offence principle, introduced in 1985. Feinberg thought that the harm principle sets the bar too high, and that there are situations where it may be right to punish people because they have offended someone or spoken against some institution. (A similar idea is enshrined in the amendment to Article 19 of the Universal Declaration of Human Rights.) The problem, of course, is that while physical harm can be objectively ascertained, offence is subjective. For instance, unlike Feinberg, I am deeply offended by the very notion of the offence principle.

Blasphemy laws are a particularly pernicious instantiation of this principle. Elements of these laws are present in about a quarter of the world’s countries—not just in the usual suspects like Saudi Arabia. Austria, for instance, has a law against defaming Muhammad. Blasphemy laws are a really bad idea in part because different religious authorities, and indeed different individuals, disagree on what counts as blasphemy—just ask the Christians, who in Late Antiquity and the Middle Ages fought interminable internecine wars in order to establish who was right about the nature of the Trinity.

An increasingly evident problem is that everybody loves free speech—until it is granted to their ideological opponents. In the US, conservatives exalt freedom of speech, unless it is the speech of companies who have chosen to boycott the voter suppression laws recently pushed by the Republican Party in many states. Likewise, liberals style themselves defenders of free speech—unless someone happens to criticize any one of a number of positions dear to them: about the nature of gender, for instance. The problem, as Noam Chomsky said, is that “if you believe in freedom of speech, you believe in freedom of speech for views you don’t like.” By that standard, very few people genuinely believe in freedom of speech.

Historically, the main restrictions on freedom of expression have been scarce access to information and a paucity of platforms on which to exercise speech. When the printing press was invented, the powers that be went berserk precisely because the new technology threatened the state’s near monopoly on information. In 1501, for instance, Pope Alexander VI published a papal edict prohibiting unlicensed printing presses. A little over half a century later, one of his successors, Paul IV, began compiling the infamous Index Expurgatorius, the list of prohibited books, which eventually became a kind of Who’s Who of daring thinkers one ought to read, including René Descartes, Galileo Galilei, David Hume, John Locke and Voltaire.

And it wasn’t just the Church that felt threatened. Many governments also considered the printing press a menace. The French monarchy mounted a widespread effort to repress printing, which culminated in the execution of publisher, Etienne Dolet: he was burned at the stake in 1546. Hundreds of authors and printers would eventually be imprisoned in the Bastille, before it was finally taken at the beginning of the French Revolution.

Nowadays, the internet—and especially social media—have changed the entire equation. The problem is no longer scarcity of information or difficulty of access, but quite the opposite: a flood of information, much of it of dubious quality, contained in  millions of blogs, podcasts, so-called news websites and social pages. The demise of the former media gatekeepers—a small number of newspapers, radio and television stations and more or less accredited critics and opinionators—was arguably a good thing. It democratized information and debate, opening it up to anyone with a computer and a Wi-Fi connection. But it has also been a disaster: the current internet of information looks a bit like the Wild West: everyone is out for themselves, and plenty of people are selling snake oil—and getting away with it.

Nobody seems to know what to do about the current chaos. There has been a welcome rise in the number of fact checking sites. But who’s fact checking the fact checkers? And, more importantly, who—other than a few journalists and assorted brave souls—is actually using the fact checkers?

The rampant and dangerous degree of misinformation on social media has finally attracted the attention of legislators. But what, exactly, are social media companies to do? I have very little sympathy for people like Mark Zuckerberg, but it is neither feasible nor necessary to hold Facebook (or Twitter, or any other social media platform) legally responsible for every nefarious post that anyone in the world may turn out to be responsible for.

I don’t think this problem is currently solvable. We will have to see how it evolves. But I do have some suggestions informed by my understanding and practice of virtue ethics. Virtue ethics is one of the three dominant frameworks in moral philosophy: the other two being utilitarianism (as articulated by J. S. Mill) and deontology (as articulated by Immanuel Kant). While utilitarianism and deontology focus on developing universal rules, virtue ethicists direct their attention to what the individual can and should do.  While there is currently no universally applicable solution to the problem of free speech,  we can briefly explore how individual agents such as you and I should comport ourselves if we want to be part of the solution, rather than further exacerbate the problem.

A basic notion in virtue ethics is that we ought to mindfully act in agreement with four broadly defined cardinal virtues: practical wisdom, courage, justice and temperance. Practical wisdom is the knowledge of what experiences or actions are truly good or bad (as distinct from what others may say counts as good or bad), particularly in regard to how they affect one’s own character. Courage means the willingness to do what we think is right, regardless of its potentially negative consequences for ourselves. Justice means acting fairly towards others—behaving towards them as we would like them to behave toward us. And temperance is the notion that we should do things in right measure, neither too much nor too little.

Let’s apply the four cardinal virtues to a typical situation concerning other people’s speech. Suppose someone—your uncle during a Thanksgiving dinner, or a stranger on Twitter—says something that is profoundly insulting to you, something that strikes at your political, religious, ethnic or gender identity, for example. How would a good virtue ethicist respond? Let’s consult the four virtues.

Practical wisdom: is the alleged offense going to make you a worse person, by undermining your character? No, because something is offensive only if you let it get to you. Otherwise, it’s just air moved by your uncle’s opening and closing mouth, or electrons excited by the Twitter stranger as he types on his keyboard. This means that you should not get angry, because that would undermine your ability to act reasonably, but instead do something that is actually good for your character: try to educate the supposed offender, who is clearly somewhat unaware of how to behave.

Courage: it takes courage to engage another human being firmly but gently, when that person is saying things that may be hurtful to you or others. So, yes, you should engage him.

Justice: you wouldn’t want others to start yelling at you or ostracize you, as soon as you said something that they might construe as incorrect or offensive. You would rather such people explain to you what they think is incorrect about what you said and why. So it’s only fair to behave in the same way towards them.

Temperance: your response should be neither too little nor too much. A throwaway comment isn’t likely to do any good: you need to be articulate what you wish to convey. But, by the same token, yelling, threatening or engaging in acts of violence would clearly be overreactions, given the circumstances.

The virtuous course of action here is perhaps best summarized by Marcus Aurelius, the Stoic emperor-philosopher: “People exist for the sake of one another. Teach them then, or bear with them.”

Will the other person respond in kind? Will he listen to you, and engage constructively in return? Who knows? That’s up to him. You can’t control what he says or does. But you can control what you say or do. So start there. We live in a society in which there is a lot of talk of rights: I have the right to do this; I have the right to say that. Rights are important, but they should come with responsibilities. And our most important responsibility is to make the world a better place, however slightly. We are unlikely to do that by shutting people down. We are far more likely to make progress by teaching them—or by bearing with them when teaching does not appear to be a realistic option at that moment. It is always an option in the long run.