FREEDOM OF SPEECH UNDER ‘THE HARM PRINCIPLE’
John Stuart Mill’s Harm Principle:
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You should be free to do what you want as long
as it doesn’t harm someone else.
The only time power can be rightfully exercised
over any member of society, against his will, is
to prevent harm to others.
What you do to yourself is exempt from this
prevention.
‘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. His own
good, either physical or moral, is not sufficient warrant.’
John Stuart Mill, ‘On Liberty’
1. What is meant by ‘harm’?
There is a great deal of debate about what Mill had in mind when he referred to harm. What most people believe Mill
is considering to be harmed are a person’s ‘RIGHTS’, as this is the term he uses himself in his book ‘On Liberty’.
An important distinction: Self-regarding vs. other-regarding actions.
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Self regarding actions are those which affect only the agent himself.
Other-regarding actions affect others.
Concerning self-regarding actions: For the Harm Principle to apply, the agent in question must be an adult, fully
in control of his or her faculties. A true agent of an action is one who, with respect to that action, is:
1. Free (not coerced).
2. Voluntary (competent to choose).
3. Informed (has sufficient information to choose).
Concerning other-regarding actions: in order for an action to be other-regarding, it must:
1. Violate a distinct and assignable (specific) obligation. [i.e. Have a significant effect on the other’s own liberty]
2. Or render the agent incapable of performing a specific duty to others.
So, in sum, we may restrict an act by law if it the action violates someone's rights. Otherwise, it may be punished at
most by opinion.
Discussion points: What does this all mean for issues such as…
- Abortion
- Euthanasia
- Freedom of speech
2. Experiments of the living
‘Conservatives are not necessarily stupid, but most stupid people are conservatives.’
- John Stuart Mill
J.S. Mill’s ‘On Liberty’ promotes:
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‘Experiments of the living’ – as with empiricism (gaining knowledge through experience and observation), Mill
thinks that only by trying out different solutions to the human predicament will a society flourish. This is the route
to social improvement: ‘Mankind are greater gainers by suffering each other to live as seems good to
themselves, than by compelling each to live as seems good to the rest.’
It criticises:
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Social Conformity – this leads to stagnation and cramping of choice, misery and a stunting of human potential.
‘The tyranny of the majority’ – social pressures imposed by majority views can prevent some people from
carrying out experiments of living. Social pressure to conform can undermine freedom and level everyone down
to an unthinking mediocrity. In the end, this is worse for everybody.
‘[T]here needs protection also against the tyranny of the prevailing opinion and
feeling; against the tendency of society to impose, by other means than civil
penalties, its own ideas and practices as rules of conduct on those who dissent
from them; to fetter the development, and, if possible, prevent the formation, of
any individuality not in harmony with its ways, and compel all characters to fashion
themselves upon the model of its own.’
3. Freedom of Speech
Mill refers to freedom of speech as ‘Freedom of Thought and Discussion’ in ‘On Liberty’. The limits on free speech
here is very narrow because it is difficult to support the claim that most speech actually causes harm to the rights of
others. It becomes very difficult to defend free speech once it can be demonstrated that its practice actually does
invade the rights of others.
Mill's formulation of the harm principle suggests only speech that directly harms the rights of others in an
illegitimate manner should be banned; finding such material offensive, obscene or outrageous is not sufficient
grounds for prohibition. The reason why is to do, again, with experiments of the living.
Mill’s main stance is that greater damage is caused by suppressing a view even if that view is false, than by allowing
it to be freely expressed.
Mill’s justification for this stance is that if a view is controversial, then there are three possibilities:
a) the view is true
b) the view is false
c) though the view is false, it may contain some truth
Concerning censorship:
Censorship should only be allowed in speech or writing if there is a clear risk of incitement to violence.
Context can affect the dangerousness of speech and writing.
Mill’s example: it would be acceptable to print in a
newspaper the view that corn-dealers starve the poor.
However, if the same words were spoken to an angry mob
outside a corn-dealer’s house then we would have good
grounds for silencing the speaker. The high risk of
inciting a riot would justify the intervention.
Q. What do you think of Mill’s argument? Is there any difference between the two examples he gives?
4. Applying the Harm Principle to Modern Examples
For Mill, writing in the 19th century, the central concern was with writing or speech which criticised orthodox views in
religion, morality or politics. But what about today? Consider the following examples and explain your answer fully:
1. Pornography
Most attacks on pornography up to the 1970's were from social conservatives who found such material to be
immoral and obscene. Are these reasons enough to ban pornography under the harm principle?
In recent times the cause has been joined by some feminists who have maintained that pornography degrades,
endangers, and harms the lives of women. What evidence would be needed to back up this argument?
2. Hate Speech
Another difficult case is hate speech. Most European liberal democracies have limitations on hate speech, but it is
debatable whether these can be justified by the harm principle as formulated by Mill. One would have to show that
such speech violated rights, directly and in the first instance. A famous example of hate speech is the Nazi march
through Skokie, Illinois. In fact, the intention was not to engage in political speech at all, but simply to march through
a predominantly Jewish community dressed in storm trooper uniforms and wearing swastikas (although the Illinois
Supreme Court interpreted the wearing of swastikas as “symbolic political speech”). It is clear that most people,
especially those who lived in Skokie, were outraged and offended by the march, but were they harmed? There was
no plan to cause physical injury and the marchers did not intend to damage property. Should the march have been
banned under the Harm Principle?
The main argument against allowing the march, based on the harm principle, was that it would cause harm by
inciting opponents of the march to riot. The problem with this claim is that it is the harm that could potentially be done
to the people speaking that becomes the focal point and not the harm done to those who are the subject of the hate.
To ban speech for this reason, i.e. for the good of the speaker, tends to undermine the basic right to free speech in
the first place.
It is possible to suggest that persons on the wrong end of hate speech are psychologically harmed, but this is more
difficult to demonstrate than harm to a person's legal rights. It seems, therefore, that if we are to base our defence of
speech on the harm principle we are going to have very few sanctions imposed on the spoken and written word.
It is only when we can show direct harm to rights, which will almost always mean when an attack is made against a
specific individual or a small group of persons, that it is legitimate to impose a sanction.
3. Do you think the Harm Principle could justify Muslim protests against the Muhammad cartoons incident?