CMC Magazine / January 1, 1996
A Plea to Ignore the Consequences of Free Speech, by Susan Dwyer
A Constitutive Defense on Free Speech
From (at least) Rousseau, through Wilhelm von Humboldt and John Stuart Mill to Chomsky, we can trace a line of thought holding that the essence of human nature is a particular sort of freedom--a capacity for creative thought and action within the bounds of certain universal constraints.
[ Cavalier connects pornography as crime to J. S. Mill's harm principle. ]
In addition, human beings appear to be aware of having this capacity, can flourish only when they are able to exercise to it (whether or not they do), and suffer when they are not so able (whether or not they know it). Arguably, whatever human dignity is (and however vague our notion of it may be), it consists in the exercise of our creative and deliberative capacities.
Inquiry and various modes of human expression are canonical manifestations of these capacities; exercising these capacities just is being human; so constraints on inquiry and expression are constraints on humanity. Vital to this conception is the idea that it doesn't much matter what inquiry is pursued, what thoughts are expressed, or what deliberations are engaged in.
Given the de facto diversity of natural talents, cultivated tastes and interests, cultural indoctrination and so on, the content of people's lives will vary greatly. There are many ways to be fully human. From this perspective, the marketplace of ideas is not justified, as Mill and others sometimes suggest, in terms of the long-term overall good consequences of the public competition of ideas--e.g., a greater likelihood that truth will win out, the avoidance of dogmatism, the maintenance of democratic polities and so on. Rather, freedom of expression is taken to be a necessary precondition for the realization of any human goods.
We may call this the constitutive--or, non-consequentialist--defense of free speech. I have focused on it, not only because I think it more plausible than any consequentialist defense, but because it brings out the idea that a concern with liberty and equality have a common source.
It is all well and good to insist that people must be able to say, write and communicate what they think in order to flourish. But if this is one's reason for defending free speech, one cannot ignore the existence of substantive inequalities.
An individual who daily confronts oppression, severe economic deprivation and the like simply cannot afford the luxury of engaging in reflective deliberation. Nor might she have ready access to the information she needs to make reliable choices about her life or make any genuine choices at all. Mill was certainly aware of this and in his Utilitarianism he poignantly reminds us of the fragility of human beings' higher capacities in certain social contexts.