Scanlon: Freedom of Expression / Categories of Expression Thomas Scanlon (1940 - ) Philosopher at Harvard University Dig his title: Alford Professor of Natural Religion, Moral Philosophy, and Civil Polity Books: What We Owe to Each Other (1998); The Difficulty of Tolerance: Essays on Political Philosophy (2003); many essays on justice, equality, toleration I thi l th /j ti th t t li t ( d In ethical theory/justice theory: a contractualist (as opposed to a contractarian) Rationality requires that we respect persons (< Kant), so the force of the social contract is not our own self-interest, but a commitment to publicly justify moral principles to each other. 1
Freedom of Expression Scanlon: 1. If rights place limits on what can be done even for good reasons, what is the justification for these limits? 2. How do we decide what these limits are? (152) For Scanlon, answers to these questions involve making some distinctions between different sorts of interests at stake in questions about freedom of expression The Ex Ante Claim A (quasi-empirical) claim that Scanlon appeals to here: We assign different tdegrees of fimportance to different categories of expression and a theory of freedom of expression needs to take account of this. So, Scanlon assumes, we are willing to accept higher costs in connection with political speech than in connection with, say, commercial speech. Compare, e.g., a ban on cigarette advertising on television with the Skokie marches 2
National Socialist Party of America march in Chicago, Illinois, 1978 An outcome of National Socialist Party vs. Village of Skokie (1977), a SCOTUS case brought by the ACLU Interests So, freedom of expression, Scanlon argues, should be understood (and questions about differing importance between categories of expression can be answered) not in terms of specific actions, but in terms of interests, since the same action can assume different significance in different contexts. E.g., private (2ish people) conversations are not normally a matter of political importance, but under some circumstances they might be (e.g., telephone trees under an authoritarian government) 3
Classes of Interests 1. Participant Interests: To be able to speak., i.e., to be able to call something to the attention of a wide audience. Such interests are attached to a variety of purposes, not all of which are equally valuable. In the political case, to press one s case and to try to persuade other s of its validity (158). Clearly related to democratic rights to participate in political process; but distinct from the public s need for information. 2. Audience Interests: To be exposed to what others have to say. In general, the interest in having a good environment for the formation of one s beliefs and desires. (156) In the political case: A need for information (e.g., about the conduct of public officials) in aid of public oversight and decision making (e.g., voting) But of course not every expression is an expression that we are interested in hearing: Expression that grabs one s attention whether one likes it or not is generally thought of a cost (155) e.g., billboards, spam 4
Of course we can exercise some control over what expressions we are exposed to (i.e., by not buying a particular book, not reading a particular blog) and we have some control over whether or not particular expressions continue to affect our beliefs and desires (e.g., we can choose to disbelieve them). Scanlon: In part because of this, rights of expression grounded on audience interests require affirmative (positive) protection, not simply the absence of interference. (156) But our control is limited. In some cases e.g., subliminal advertising we may end up with desires or beliefs that bypass our reasoning (we are manipulated into thinking we have good reasons when we probably do not) 3. Bystander Interests: I) Side Effect: Interests in avoiding the undesirable side effects of acts of expression themselves: traffic jams, the noise of crowds, the litter from leafletting. II) Audience Effect: Interests in the effect expression has on the audience (157) e.g., people acquire new, possibly unfavorable beliefs about me or a group of which I m a member. 5
Regulation So, when considering regulation on expression: Since not all participant interests are equally valuable, we might reject government regulation of some categories of expression (e.g., political speech), while allowing others (e.g., advertising). Restricting political expression would compromise important t participant i t and audience interests; t the interests t compromised by restrictions on commercial advertising arguably are simply less valuable Similarly, we might protect some forms of expression despite the fact that some people don t want to be exposed to that expression (they lack the relevant audience interests) or fear the effects of that expression (they have opposed bystander interests). E.g., If the participant interests are especially valuable or if we can t rely on government to distinguish different categories of expression. So, e.g., were the Skokie marches genuinely political? Maybe, maybe not. But do we want a (possibly biased) government to make that decision? It would be a mistake, Scanlon says, to rely simply on distinctions of intent and/or content 6
Categories of Acts: Distinguished by intent and/or content and effect. So, e.g., What counts as political speech is speech intended to have, or that likely will have, some effect on elections or policy or government processes. Categories of Interests: Distinguished by participant, audience, and/or bystander interests. The distinction is necessary, says Scanlon expression (act), e.g., g, can be distinguished from assault (act) on the basis of participant intent. But we should be wary of legal categorizations based founded on intent and keep their use to minimum: Danger of official misapplication (e.g., cases like Skokie) Difficulty of regulating one category of act without restricting others as well (e.g., U.S. campaign finance laws, 163-4) 7
Conflicts Similarly, we might restrict some forms of expression on the grounds that they negatively affect bystander interests. But such restrictions can obviously conflict with participant and audience interests. It may be that side effect harms can be dealt with more easily than audience effect harms (e.g., by restricting the time, place or manner of expression), but this depends on the availability of other opportunities for expression where there is no surplus of effective means of expression, regulation of, time, place and manner can be just as dangerous as restrictions on content. (157) Case Study: Pornography Why restrict it? Unwilling exposure to offensive material? If that was the whole of the issue, the solution would be easy: Restrict the time, manner, and place of public display, but otherwise place no restrictions whatsoever on what can be shown in theaters, t printed in books, or sent through h the mails in plain brown wrappers. (165) (a charmingly 70s characterization) 8
Porn II Bystander interests? The availability of pornography may contribute to undesirable changes in our attitude toward sex and we all have a legitimate interest in changes in social mores. Scanlon takes this idea seriously (e.g., blood sales and altruism) But this bystander interest in pornography regulation is definitively not the sort of thing that can be fairly resolved by a majority vote Majoritarian legislative control would be fair iff all participants p had free access to information and opportunities to persuade each other but that is precisely what regulation would prevent. Thus, pornographic expression is arguably part of a process of informal politics But can we reliably distinguish i the intentions ti of mere pornographer from politically serious sexual reformer? This may go beyond respecting bystander interests about freedom from obscenity or changing social mores 9
But: Proponents of a change in attitude are not entitled to use just any expressive means to effect their aim even if the given means is the only one that would have the effect they desire: audience interests must also be considered. (167) If porn works like subliminal advertising, changing or If porn works like subliminal advertising, changing or mores by means outside of our rational control, it might still be restricted. 10