II. Freedom of Expression: Replaying the Paradoxes of Liberalism and Epistemic Abstinence

Liberalism, as a political philosophy or family of political philosophies, takes partisan positions on freedom of religion, freedom of association, and, of course, freedom of expression.

So let us assume that the entire corpus juris is exactly what the liberal theorist would advocate. People have their fair-according-to-liberalism share of resources and pay the liberalism-prescribed rate of taxation for public goods. Their environment is protected to the proper extent from pollution, noise, visual blight, and so forth. Activities that risk bodily, property, and environmental harm are regulated to the precise degree that liberalism demands. In short, all of the Track Two laws are what liberalism mandates.

In such a case, no one could plausibly claim a liberalism-derived right of freedom of expression that would immunize her violation of those Track Two laws. That was the conclusion drawn in Chapter Two. And if liberalism is the progenitor of both the right of freedom of expression and the Track Two laws at issue, then if the Track Two laws are proper, freedom of expression must necessarily be consistent with their observance. Conversely, if a particular Track Two law is inconsistent with liberalism, then the liberal’s complaint should be directed against the Track Two law itself, and not against it only insofar as it has effects on messages that themselves have nothing to do with law’s inconsistency with liberalism.

But what is true of Track Two laws is also true of laws that come within principle (5) - laws that government enacts in order to affect the messages people receive. Consider, first, those laws that are aimed at preventing receipt of messages because such receipt causes harm without further action by the audience. The harm may be that of revealing an attorney-client confidence, an embarrassing private fact, a trade secret, or a military secret. Or it may be the harm of taking someone’s intellectual property or causing emotional distress.

If liberalism dictates that people should be protected from these harms, then messages whose receipt produces such harms cannot be protected under the auspices of liberalism without contradiction. Liberalism cannot be evaluatively neutral regarding itself.

Of course, liberalism might reject laws that protect against messages that directly cause harm by revealing confidences, secrets, and private facts, by in­fringing property and contractual rights, by inflicting emotional injury, and so on. But to do so, liberalism either would have to assert that the communication of any message is more important in the liberal calculus than freedom from those harms, or it would have to assert that messages that harm those inter­ests are or are not immunized from government sanction, depending on what the message is. The latter alternative is, of course, inconsistent with evaluative neutrality. And it results in a liberalism that protects one from message-caused harms unless the message is more important - true, and otherwise consistent with liberalism in what it advocates or endorses - than those harms. The re­sulting right of freedom of expression then is a right that no one would want to deny - a right to convey messages that are consistent with liberalism and that cause only harm that liberalism deems less important than the messages.

Now consider those harms that are produced when the audience receives a message, evaluates it, and then acts harmfully, to others or to itself, in re­sponse. The audience may be deceived by a false or misleading message. It may be provoked by advocacy, incitement, solicitation, or insult. It may be given information that facilitates producing preexisting harmful ends. And so on.

Within principle (5), laws that are aimed at messages causing harms in such a two-step manner - laws against advocacy of illegal acts, against “fighting words,” against deception and defamation, and against publishing dangerous information - are the laws that have most engaged liberal theorists of freedom of expression. Yet, as we saw in Chapter Four, the theories of Scanlon, Strauss, and Mill are unpersuasive. They cannot provide a principled distinction within the class of laws aimed at causing harm in two steps between those laws they would prohibit and those they would allow.

It is easy to see why no such liberal theory can succeed. If the harms caused by deceit, advocacy, insult, and information release are harms that, according to liberalism, people have rights that others not cause, then liberalism cannot but value negatively the messages that cause such harms, just as it cannot but value negatively religions that seek to impose their illiberal views on others. If, per liberalism, violence against African Americans is wrong, then advocacy of such violence is wrong, and the message that such violence is justified has no (positive) value.

Therefore, if someone advocates illiberal actions, and the government fears that an audience may be persuaded to take those actions and cause wrongful harms as a consequence, government cannot be both committed to liberalism and agnostic about the positions advocated, nor can it view such agnosticism as a justification for refraining from suppressing the expression in question.

On the other hand, if a liberal government were to suppress speech because it feared the audience would be led to illiberal conclusions, in what sense would that government be “liberal”? For the core of anything recognizable as freedom of expression does seem to be what Justice Jackson said it was, namely, the prohibition of establishing an official orthodoxy. Freedom of expression perforce rests on evaluative neutrality with respect to what is being expressed.

Finally, what about the autonomy of those whom the government fears will misassess the truth or value of a message? Does not censorship of such messages violate the audience’s deliberative autonomy, and cannot a right against such violations of autonomy generate a substantial right of freedom of expression?

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I believe that focusing on autonomy merely replays the paradox with a differ­ent label attached. First, most regulations under principle (5) - those designed to prevent direct harm (to privacy, secrecy, confidentiality, ownership, contractual rights, and emotional peace) - do not involve violations of audience autonomy. The harms these regulations are meant to prevent will occur no matter how the audience deliberates about the messages.

Secondly, even where government does seek to prevent harm through audi­ence action taken in response to the message, autonomy is on both sides of the equation. On the one hand, the government is restricting the audience’s ability to receive messages because it fears audience misassessment - arguably, a case of disrespect of the audience’s deliberative autonomy. On the other hand, gov­ernment believes that because the message is wrong (in the facts or values it asserts), it will only be misassessed by the audience because of some defect in the audience’s ability to deliberate rationally about the message, a defect that impairs the audience’s autonomy.

Put differently, autonomy, like the liberalism that gives it pride of place, is a Janus-faced value that looks both at the process of belief-formation and at the substance of what is believed. Bypassing the individual’s own rational deliberation and brainwashing her appears inconsistent with autonomy, even if she is brainwashed to hold correct views. But the individual who misunderstands his world both factually and normatively also seems to lack autonomy, no matter how independent the deliberations that led him to error. As Joseph Raz correctly points out, autonomy is of value when it is exercised in choosing between options that are truly good, not when it is exercised to choose the base or the wrong.^[351] And the value of autonomy can never countenance the value of undermining autonomy.

III.