Deontological Theories

If consequentialist theories seem incapable of justifying a human right of free­dom of expression, are deontological theories better equipped to do so? After all, deontological rights, unlike consequentialist ones, are not derivative of some goal and are not variable in shape according to the circumstances.

The difficulty with deontological theories of freedom of expression is that any such theory that is at all cogent will be both too narrow and too extreme. First, one type of deontological theory - what I shall call the libertarian liberal’s nonappropriation theory - looks to be inapplicable to freedom of expression cases. The nonappropriation theory proscribes appropriating without consent another’s body, labor, or talents in order to produce good consequences.^[254] Thus, government is forbidden from forcefully taking a kidney from someone who has two good ones and redistributing it to someone who needs it to survive, even though the kidney redistribution will save the recipient’s life at minor cost to the involuntary donor.

In freedom of expression cases, however, government is not appropriating others’ bodies, labor, or talents. It is instead preventing harm to third parties or to the audience from the medium of expression (in Track Two cases) or from the audience’s receipt of the message (in Track One cases). The deontological injunction against appropriation will only apply to cases in which government is compelling individuals to speak (or sing, or produce poetry, and so forth). Such cases, however, although they are candidates for deontological proscription, are at the fringe of freedom of expression concerns and assimilable to libertarian liberal concerns that range far beyond compelled expression.

A different type of deontological theory of freedom of expression is the kind advanced by Scanlon and Strauss that we considered in Chapter Four. That type of theory forbids government from acting to prevent audiences from receiving messages when government’s reason for doing so is that it does not trust the audience’s ability to assess the messages. Thus, Scanlon and Strauss would prevent government from proscribing expression on the ground that it fears the expression will persuade the audience to violate legitimate laws. On the other hand, if government is proscribing expression for any reason other than distrust of the audience’s ability to assess it properly, government is not violating the ScanlonZStrauss deontological constraint.

In Chapter Four I raised doubts about the ScanlonZStrauss principle. For one thing, it would appear to render illegitimate the crimes of criminal solicitation and incitement, despite Scanlon’s and Strauss’s protestations to the contrary.

More importantly for our purposes here, even if the ScanlonZStrauss princi­ple is a justifiable deontological constraint on government, it is far too narrow to provide a basis for a general theory of freedom of expression. Its maximum scope of application is to those Track One laws and actions designed to pre­vent two-step harms by morally responsible audiences. Although Scanlon and Strauss undoubtedly believe their principle applies whenever government is proscribing what it believes is the propagation of false opinions - as opposed to false facts - on the ground that the audience might believe those false opinions and act to its or others’ detriment, I have raised doubts about the cogency of the opinionZfact distinction on which any extension of the principle beyond criminal advocacy rests. (Indeed, because I likewise attacked the factZvalue distinction, I concluded that the principle might have no range of application whatsoever, not even to criminal advocacy.)

Moreover, the ScanlonZStrauss principle is completely inapplicable to the many laws and acts designed to prevent one-step harms from expression or designed to prevent two-step harms from nonresponsible audiences. (A gov­ernmental concern with how the immature, the insane, and other nonrespon­sible actors might process a message does not fall within the ScanlonZStrauss principle; but it is difficult to imagine what laws Scanlon and Strauss find prob­lematic that could not be justified by such a concern.) Nor does it have any obvious application to Track Three. And, of course, it is completely irrelevant to Track Two.

I conclude that neither type of deontological principle - the general nonap­propriation principle or the ScanlonZStrauss freedom of expression principle - provides us with a defensible theoretical underpinning for a human right of freedom of expression.^{[255] [256]}

III.