Barendt on Mill on Freedom of Speech
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Sometimes, when Nadine Strossen discusses freedom of expression or moderates a debate, she takes out and dons a red baseball cap. It resembles, from a distance, a MAGA hat, but it turns out to say “Make John Stuart Mill Great Again.” While this lauding of Mill is common, not everyone thinks Mill’s arguments for free speech—presented in On Liberty, published in 1859—have settled the matter. In a 2007 book called Freedom of Speech, Eric Barendt, a Professor at University College London, conducts a “comparative treatment of free speech law”: US, UK, Germany, etc. One of his “major themes” is that “the more difficult free speech questions can only be answered” after looking closely at somewhat abstract “[reasons] why free speech is valued so highly,” words to warm an academic philosopher’s heart. As part of his reflection Barendt summarizes and criticizes Mill’s arguments.
The summary goes by faster than it should:
Mill’s truth argument put forward different contentions, dependent on whether the expression at issue is possibly true or is (almost certainly) false.1
So, two cases. Case 1: the opinion or idea to be expressed might be true; in that case,
Prohibition [of that opinion] entails an unwarranted assumption of infallibility on the part of the state...it is only because opponents of such measures are free to challenge their wisdom that the government can ever be confident that its policies are right and that it is appropriate to legislate.
And then, case 2: the opinion is almost certainly false: then
people holding true beliefs will no longer be challenged and forced to defend their views...[and those views therefore] will be held as a dead dogma, not a living truth.
This isn’t a great summary of Mill, but hold that thought. What weaknesses does Barendt think he’s identified? There are three.
First: the argument
assumes that in all circumstances (short of an imminent emergency) the publication of a possibly true statement is the highest public good. But there are many situations where legal systems prefer to protect other values, and that choice seems defensible...It is not inconsistent to defend a ban on the publication of propositions on the ground that their propagation would seriously damage society, while conceding that they might be true.
But I dare you to find, in Barendt’s summary of Mill or in the raw material of On Liberty itself, the assumption that the publication of a possibly true statement is the highest public good.
What about Barendt’s claim that it’s okay to ban the publication of propositions that might be true, on the ground that “their propagation would seriously damage society”? The time has come to look at what Mill actually wrote:
Those who desire to suppress [a possibly true statement]...have no authority to decide the question for all mankind.
The state may not do just anything to prevent, in Barendt’s phrase, “serious damage” to society.2 It may not, for example, execute a bunch of innocent people. Even to “protect values,” some means are prohibited. Mill can be read as including, among the prohibited means, the suppression of possibly-true statements. Maybe Barendt disagrees with this. He needs to explain why.
On to the second “weakness”:
Mill overvalued intellectual discussion and the need for all individuals to be able to debate public affairs vigorously. This features emerges most clearly in his claim that it would be wrong to prohibit even false speech, because in the absence of opposition the ability to defend true and valuable beliefs will decline. This may be correct, but a government worried that inflammatory speech may provoke disorder is surely entitled to elevate immediate public order considerations over the long-term intellectual development of the man on the Clapham omnibus.
But Mill did think the government could “elevate immediate public order considerations”: he wrote that
even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.
In this, Mill agrees with current First Amendment jurisprudence: the right to free speech does not protect incitement to imminent lawless action. But note the role of “circumstances.” An opinion which, expressed in one circumstance, would incite lawlessness, will not have that effect in every other. And in those other circumstances, its expression cannot be punished. Things you can’t say to a frenzied crowd about to tip, you may still publish in a law journal’s dusty pages. Barendt’s attempt to object to Mill says nothing inconsistent with any of this.
Third, the “greatest difficulty with Mill’s argument” is
its implicit assumption that freedom of discussion necessarily leads to the discovery of truth, or, more concretely, to better individual or social decisions....That assumption is certainly warranted in environments where there is a shared commitment to the discovery of truth [places like universities—one hopes]...[But in society at large] some historical experience suggests the contrary; the Nazis came to power in Germany in 1933, although there had been (relatively) free political discourse under the Weimar Republic.
Again, I dare you to find this assumption (even implicitly) in any of the above. Case 1 says suppression of possibly-true opinion is not a legitimate exercise of state power; case 2 says suppression of known falsehoods is bad for those who (already) believe the truth. Couldn’t all that be correct, even if freedom of discussion did not always lead to the discovery of truth?
And is this “implicit assumption” so unwarranted? Barendt’s case against it commits the Weimar fallacy. In fact, the Nazis were censored—and they used that censorship to create sympathy for their cause. Aryeh Neier, the ACLU director who defended the Nazis’ right to march in Skokie, wrote that “The Nazis did not defeat their political opponents of the 1920s through the free and open encounter of ideas. They won by terrorizing and murdering those who opposed them.” Whatever the right conclusion in this case, the historical details matter, and Barendt does not begin to delve into them.
Anyway, Barendt’s Mill isn’t much like the real one. Mill did not claim that freedom of expression was sufficient for the discovery of truth; he claimed it was necessary for the attainment of knowledge:
He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.
Maybe Mill did not lay to rest the question of how free thought and opinion should be. But if you think he was wrong, you are going to have to criticize the arguments—and “implicit assumptions”—he actually gave and made.
See also: Whittington on Free Speech on Campus; Andrew Doyle on Free Speech; On Defending My Enemy—Aryeh Neier’s account of the Skokie case.
The two are not exclusive: indeed, if something is almost certainly false, then it is not certainly false, and so might be true. Mill was more careful than Barendt’s summary, writing “We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.”
Mill, in the quotation, is talking about anyone who might desire to suppress, but that anyone includes the state.