Philosophy and Theory of Freedom of Expression

2012-08-15 12:34:48

Within the United States, free speech is perhaps the preeminent right among all of the rights included in the Bill of Rights. In many cases it may take precedence over other important constitutional or legal rights, including the constitutional right of copyright (Art. I }9), the legal protection of personal reputation, or efforts to control publicity as a means of assuring a fair trial under the Sixth Amendment. Free speech has also, at times, preempted other constitutional rights, including a tendency of the courts to protect free exercise of religion claims grounded in expressive conduct under the rubric of free speech as opposed to free exercise.

The term ‘‘free speech’’ is, however, a popular misnomer for a concept more properly identified under the heading of freedom of expression. Free expression, in turn, represents an extremely complex, multidimensional construct whose popular acceptance, under the label of free speech, masks a significant level of controversy and conceptual confusion. With the exception of those few commentators and advocates who, like Justice Hugo Black, hold an absolutist view of free expression (that is, that the Constitution’s prohibition on laws limiting free speech means that no legal restrictions can be imposed), the difficulty within the legal concept of freedom of expression resides in determining how to draw the line between protected and nonprotected expression.

In determining how to protect expression, the state will have to consider the nature and function of expression in relation to the values held by that society. That is, determining what types of expression should be protected depends not only upon the purpose for protecting free expression in a liberal democracy (that is, why), but also upon a proper understanding of the nature of free expression (that is, what it is and how it functions). These constructs are so interrelated that one could start with any of the three (that is, why, what, or how). Here, we will begin by considering what constitutes expression and how it functions. This is a descriptive task based on the nature of expression. We then explore why society should protect expression: what the social values advanced by free expression are. We then consider how these three factors relate in developing our ideas on regulating expression, along with certain pragmatic limitations imposed by the nature of regulating expression. Finally, we consider what forms of expression ought to be protected to advance those social values.

The Nature of Expression

In deciding what types of expression should be protected (that is, free), the first question is what do we mean by free expression? This determination involves describing what expression is and how it functions in a liberal democracy. That is to say, the nature and function of expression will determine what type of expression should be protected. For example, if the function of free expression is to educate, then those forms of expression that do not fulfill that function specifically (that is, education for a specific purpose) or generally (that is, provide a general quality) may not deserve protection.

One way to define expression is to describe the elements or characteristics of expressive behavior (that is, what it is). These include: communication, information, and influence or persuasion.

Communication. Expression, according to its simplest understanding, involves

communication from one person to at least one other person. Thus, two elements of expression may invoke protective rights: the right to express and the right to hear that expression. The two may or may not be equally protectable or even mutually protected in the same event.

Information. The object of communication is to provide information or receive information. The most obvious form of communication is speech: the expression of ideas through words, whether written or oral. However, ideas can also be expressed in nonverbal forms: symbols, visual expressions, music, and expressive acts, though the substantive content of those ideas will be very different. Thus, the state’s definition of the types of ideas protectable may define the types of expression protectable.

Persuasion. Finally, expression involves persuasion or influence, an effort to change the reality or position of the receiver of the expression. The most obvious example of persuasion is a rational argument that attempts to convince the hearer of the merits of the speaker’s position (or person). However, other forms of expression such as story telling, ritual practice, or artistic practice may also be persuasive through the invocation of emotion rather than reason. For example, even at its most abstract, a great work of visual art is said to change the way a viewer sees the world.

The second way of understanding the nature of expression is to consider how it functions in the social setting. The possibilities may be divided into two broad categories: individual focused and social.

The personal function. The first function expression may serve is personal or self-centered. Expression may constitute an essential function of self-identity: the ability to express oneself as a means of constructing the self. We may be thought of as helping to create our sense of self, self-identity, and/or self-worth through our capacity to create works of art or express our opinions in public. Efforts to restrict selfexpression are, therefore, potentially damaging to the individual. Similarly, the individual interest may be in the right to be exposed to the expression of others. One develops a sense of the self out of one’s engagement with the ideas of others. One’s sense of self and self-identity may also emerge out of the freedom to hear and to pick and choose among the widest possible number of viewpoints. Finally, free expression in terms of the self may simply represent a fundamental liberty interest of the individual as against the state, where the state simply has no authority or right to intrude upon the individual’s expressive interests.

The social function. The second possible function of expression is that it advances or supports some important social activity or function of the communities’ polity. The simplest function for free expression may be that it facilitates communal living by imposing the least upon the inherent liberty of the individual, what may be referred to as the libertarian function. Second, freedom of expression supports the existence of the public square—that forum in which governmental policies and activities are discussed and debated with the goal of influencing one’s fellow citizens and/or the government. Clearly, the public square cannot function without the participation of the citizens. Removing restrictions or impediments to expression encourages the widest possible participation in the public square and the greatest potential diversity of expressions. Related to this is the most popular and famous formulation of the purpose of free expression— that it creates a free marketplace for ideas. As discussed by Justice Oliver Wendell Holmes in Abrams v. United States (250 U.S. 616, 1919) and by John Stuart Mill, this marketplace for ideas helps to promote knowledge and truth by subjecting all ideas to the challenges of public examination and debate. Moreover, repressing expression has the perverse effect of magnifying its power because it is allowed to exist without exposure to public challenge.

The Values or Utility of Freedom of Expression

The second fundamental question regarding freedom of expression is why society should protect expression. What are the values to society embodied in the types of expression for which protection is sought? Societies protect those functions that advance their interests. The interests may be complex or multifaceted; hence, society may adopt a variety of values in conjunction one with the other or varying according to specific situations. The decision to protect certain forms of expression according to what functions they serve ultimately reflects that nature and values of that society. Here again, in analyzing the possibilities, the two broad categories of personal interests vs. social interests are helpful.

Personal interests. Each decision to protect expression because of its personal interest function reflects a particular conception of the appropriate relationship between individuals and the state chosen from among a number of options. Those conceptions (or values) range across a continuum from a minimalist, libertarian/liberal relationship to a communitarian/perfectionist one of profound engagement between the state and the individual.

Libertarian. The minimalist or libertarian social conception views the state as having limited authority over the individual. Therefore, the state would have only limited rights to intrude upon the expression rights of the individual due to social necessity (that is, to prevent violence or harm to others within society).

Liberal. The next, or liberal conception, shifts the perspective taken from a focus upon the isolated rights of the individual to be free of the state to the obligations of the state towards the individual. While still imposing a limited view of state–individual interaction, the liberal conception understands the state as standing in a position of subservience where the state has a duty to respect the individual. While still compelling a strong recognition of freedom in relation to expression, the liberal position lessens the claim of right by relativizing it to what is needed to respect the individual. Thus, while libertarianism demands that the state refrain from interfering in the liberty of the individual, liberalism would simply require procedural and/ or egalitarian treatment respectful of the individual.

Communitarian. The communitarian or common good perspective posits a more interactive relationship between the individual and the state. The state and its citizens are engaged in a cooperative relationship of self-governance. The state regulates behavior according to more general concerns of creating or sustaining a specific understanding of the common good. Thus, the state may be concerned with the effect of expression upon the individual and how that advances or inhibits the creation or maintenance of a beneficial, peaceful social environment meeting the social needs of the citizens.

Perfectionist. The perfectionist understanding of the state views the individual as a product of social conditioning. As previously advocated in its most extreme form by communist revolutionaries, the goal of the state is to engineer society so as to create new, liberated individuals. Under a perfectionist conception, the state would view expression as a tool in the manipulation or character formation of its citizens as better people and/or as good citizens (for example, educated, informed, critical thinkers, etc.).

Social interests. Protecting expression according to the social interests served also covers a spectrum of state/individual interaction ranging from a minimalist, social libertarian ideal to one of strong engagement. These social interests generally reflect varying degrees of participation in social self-governance and, with the exception of the social libertarian model, all involve the creation and support of a public square as a necessary element in politics.

Social libertarian. The social libertarian ideal fundamentally segregates the individual from the state. The focus is upon protecting the autonomy of the individual independent of any association with state governance. This is a social interest, as opposed to an individual interest, insofar as this segregation is viewed as a useful tool for social organization. That is, the idea of protecting the liberty interests of individuals (including their expressive interests) may be socially useful as a method of limiting social conflict or to facilitate state interests resting upon individual initiative or action.

Political. The idea of the public square reflects a politics in which individuals and social organizations participate in the public discussion of issues of public concern with the goal to analyze, critique, shape, or influence the development, enactment, or enforcement of public policy. The range of purposes or activities that the public square serves can vary enormously. They would include, for example, serving as a counterbalance to the state (for example, by exposing corruption and inefficiencies), educating and informing the public about issues of public concern, serving as a pressure release for social pressure or anxieties, and/or creating a marketplace for ideas to establish truth and falsity of political ideas.

Application of Values

As previously noted, in determining how to protect expression, the state will have to consider the nature and function of expression in relation to the values held by that society. This will involve an assessment of the expression involved according to its nature or function and whether or not it advances the values of the society. It may also be necessary to determine whether or not the suggested function (for example, determining truth through a marketplace of ideas) is, in fact, effective overall or in relation to this specific expressive practice.

Balanced against this assessment, the state must determine what limits may be imposed due to conflicts between the free expression interest and other socially important interests. The more value given to the free expressive interest, the harder it becomes to restrict it and vice versa. Thus, when the free expressive act reflects an important social value, restricting that act would require the identification of an equally compelling value that would be harmed by the expressive act.

Determining the value of expression is, of course, difficult. Indeed, since one of the major objects of free expression is to facilitate the social determination of the good, it may not be possible for participants or regulators to make an accurate determination of value prior to the conclusion of the expressive act/ transaction. Moreover, expression in the public square exists within a complex web of public discourse. The impact of one expressive Act Upon others may be virtually impossible to determine in advance. For example, in the latter part of the twentieth century, changes in literature contributed to changes in literary criticism that in turn influenced political theory and judicial interpretation. Finally, given the uncertainty of value and indeterminacy of effect, efforts to regulate expression may have unintended consequences in restricting expression.

When free expression is deemed an important value, these cumulative concerns often justify the development of a prophylactic policy of protecting free expression. The state may refrain from regulating expression—not because the particular expressive act advances a social value or interest—but rather out of concern that the attempt to control that expressive act may have the unintended consequence of limiting or ‘‘chilling’’ other expressions that would advance society’s interests.

Alternately, given the intangibility of free expression, the state may adopt the prophylactic of the ‘‘slippery slope’’—an approach that resists the adoption of limitations on a right based on the fear that the first breach in the wall of protection represents the first step on a slippery slope of declining freedom. Since the virtues and harms of free expression are contestable in both specifics and general application, a principle of strong protection stands guard against inadvertent erosions that cumulatively would be extremely harmful.

Types of Protectable Expression

In identifying and analyzing the types of expression to be protected under the freedom of expression principle, it is useful to start with political expression, the type most associated with the social value identified with expression. We will then consider nonexplicitly political expression, public expression, private expression, and, finally, nonprotectable expression.

Political expression. The idea of free expression is inherently linked to politics and the ideals of self-governance. It is not only included in the First Amendment to the U.S. Constitution, but also is a central tenet of the International Bill of Human Rights (that is, the Universal Declaration of Human Rights and the International Covenant of Civil and Political Rights) and is considered by most commentators as a fundamental human right. It involves all three of the principle characteristics of expression: the communications of political ideas among the citizenry; the transfer of important political information; and its use to persuade those citizens of the merits (or demerits) of a particular political position or idea. The social function of political expression is to advance political action through the tool of the public sphere or public forum. There are four types of political expression: political speech, expressive speech, expressive conduct, and free press. Each is slightly different, involving differing characteristics and/or values. What unifies the four is that the content is explicitly concerned with political ideas, including the advocacy of state policies, criticism of state action, and promotion of political representatives.

Political speech. Political speech involves verbal expression, written or oral, of political ideas between the speaker and the audience of the speaker. This is the purest expression of the free expression ideal involving the communication of ideas from one to another.

Expressive political speech. Expressive political speech includes all forms of fictional and/or nonverbal recorded expression addressing political topics, such as paintings, music, or fictional books or movies. They differ from political speech insofar as their ability to convey information is limited by their form of expression. Thus, while Picasso’s Guernica conveys powerful ideas about the horrors of war, perhaps persuading citizens against a too ready acceptance of war, it does not provide significant information about weapon systems useful in discussing arms limitations treaties or international relations between countries facing conflict.

Expressive conduct. Expressive conduct involves actions performed by one person with the object of making a nonverbal political statement. This would include the famous examples of burning one’s draft card or the American flag to protest U.S. war policies during the Vietnam War. Expressive conduct differs from expressive political speech in that conduct is less inherently expressive (that is, less effective at communicating ideas) and it takes place in a public setting. Thus, expressive conduct frequently relies upon provocation (that is, taking something with particular symbolic meaning and emotional importance and using it in an offensive way) in the face of an audience sensitive to that provocation.

Free press. The free press concept varies from political speech in that it reflects the rights and responsibilities of the media as a conduit for the political speech of others. The media will, of course, also include political speech on its own behalf (as a corporate or individual citizen). However, what makes this type of expression difficult is determining the extent of the media’s protections as an agent of the public in gathering and disseminating political ideas on behalf of the public. (This is a highly contested area.) As a general rule, because it embodies a central value for self-governance, political expression will be accorded the greatest levels of protection by the state.

Nonexplicitly political expression. Expression that is not explicitly directed towards political topics may nonetheless implicate political concerns. For example, a democratic polity requires not only a public that is informed of the issues, but also one informed about a range of nonpolitical ideas and capable of critically reflecting about political and nonexplicitly political ideas. Thus, the state may seek to protect nonexplicitly political expression to advance the values of politics and self governance. However, it may also justify protection on the individual interest grounds of communitarian interest or perfectionism of the individual. Types of nonexplicitly political speech would include the arts, education, and popular nonpolitical media.

Private expression. Private expression involves the state in protecting expression on individual or social libertarian grounds. That is, private expression is protected not for its content, but rather for its value to the individual. Thus, one may protect individual expression because it reflects the self-expression or self-creation of the individual or out of respect for the rights of the individual to be left alone by the state. A state adopting a social libertarian view would protect virtually all expression (including nonexplicitly political expression) as private expression. In terms of the general principles of freedom of expression, the greatest import of private expression is not the protections of expression but rather on the aspects of privacy. Thus, the state may protect individuals and their expressive acts from mass media exploitation and/or from state intrusion.

Limiting expression and nonprotectable expression. As is the case with any right, the principles of freedom of expression creates a presumption of protection whose strength varies according to how effectively a particular type of expression embodies a value important to that society. That presumption may then be overcome when it conflicts with a competing right or interest of comparable or greater value. Thus, for example, political speech (the highest valued form of expression) is protected even when it interferes with the rights of reputation accorded to individuals, whereas private speech generally would not be protected. Similarly, protecting the rights of the accused under the Sixth Amendment allows for some restrictions on the free press. There are cases where the nature of the expression is so devoid of social value that the expression is deemed nonprotectable:

Danger-creating expression. Some expression does not deserve protection because it creates palpable risks or harm. The classic example given by Justice Holmes in Schenck v. United States (249 U.S. 47, 1919) would be shouting ‘‘fire’’ in a crowded movie theatre. The expression creates unacceptable risks without advancing any discernable social values.

Hate speech. Throughout most of the civilized world, states do not protect speech that is intended to create or advance hatred directed towards groups based on race, ethnicity, religion, culture, or other characteristics. In those states it is generally agreed that hate speech, like danger-creating expression, creates unacceptable risks of harm without advancing any discernable social values. In the United States, the Supreme Court has adopted the approach that the best shield against hate speech is a functioning free marketplace of ideas (Abrams v. United States, 1919). Specifically, the court assumes that exposing hateful ideas to public debate will lead to their being discredited, while repressing those ideas through legal prohibition risks increasing their impact among those holding such ideas.

Obscenity. The third principal form of nonprotectable expression is obscenity. By definition, obscenity is a form of expression involving sexually explicit, prurient material totally lacking in socially redeeming characteristics. Over the years, the category of expression found to be obscene has steadily shrunk within the United States as these forms of expression have been found to involve private speech (for example, the right to view sexually explicit materials within the home) or nonexplicitly political expression in the sense of providing a social commentary on the state.


References and Further Reading

  • Black, Hugo L. A Constitutional Faith. New York: Alfred A. Knopf, 1968.
  • Mill, John Stuart. On Liberty in Utilitarianism and Other Writings. New York: New American Library, 1962
  • Schauer, Frederick. Free Speech: A Philosophical Enquiry. Cambridge: Cambridge University Press, 1982

Cases and Statues Cited

  • Abrams v. United States, 250 U.S. 616 (1919)
  • Schenck v. United States, 249 U.S. 47 (1919)
  • Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948)
  • International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976

See also Hate Speech; Obscenity