TENSIONS AND APPLICATIONS:
APPLYING TOLERANCE TO THE ISSUE OF FREEDOM OF EXPRESSION
What is ‘freedom of expression’?
The philosopher Thomas Scanlon considers freedom of expression to be a class of acts that include:
[A]ny act that is intended by its agent to communicate to
one or more persons some proposition or attitude. This
is an extremely broad class. In addition to many acts of
speech and publication it includes displays of symbols,
failures to display them, demonstrations, many musical
performances, and some bombings, assassinations, and
self-immolations. In order for any act of expression it is
sufficient that it be linked with some proposition or
attitude which it is intended to convey.
So freedom of expression concerns acts that communicate a certain message.
And it is because communication, or expression, can take violent forms such as bombings and
assassinations, that we find people often only talking about “freedom of speech” – for many would
argue that such actions ought to be restricted by law, whereas free speech is seen to be a class of
protected acts (often above the law).
Yet, Scanlon recognises the importance of both speech and action, noting that those who differentiate
between the two ‘have generally wanted to include within the class of protected acts some which are
not speech in any normal sense of the word (for instance, mime and certain forms of printed
communication)’. He also notes that those same proponents of free speech might also want to exclude
from the subclass of “speech”, some forms ‘which clearly are speech in the normal sense (talking in
libraries, falsely shouting “fire” in crowded theatres, etc.)’
In these lessons we will focus on freedom of expression as a whole.
Four key things to consider in this debate of tolerance and freedom of expression
The following four key things to consider in this debate concerning tolerance and freedom of expression are
explained here with reference to John Stuart Mill’s Harm Principle, which is often used as a guide to why
freedom of expression is important in a liberal society and whether, or to what extent, it should be restricted.
1. RIGHTS
o
To what extent are the rights of those affected by the act of expression being attacked?
2. POWER RELATIONS
o
What kind of power relations are there between the proponents of the controversial content
(those who are expressing themselves) and the subjects of the act of expression (the people
being discussed in the speech’s content)?
3. CONTEXT
o
What is the context in which the controversial act of expression being made?
4. TOLERANCE ITSELF
o
What is the relationship between the controversial act of expression and the issues we have
already considered concerning tolerance?
Four key things in relation to JS Mill’s Harm Principle
1. RIGHTS
JS Mill’s Harm Principle:



You should be free to do what you want as long as it doesn’t harm someone else.
The only time power can be rightfully exercised over any member of society,
against his will, is to prevent harm to others.
What you do to yourself is exempt from this prevention.
As Mill puts it: ‘The only purpose for which power can be rightfully exercised over any member of a civilized
community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient
warrant.’
There is a great deal of debate about what Mill had in mind when he referred to harm. What most people believe
Mill is considering to be harmed are a person’s ‘rights’ as this is the term he uses himself in his book ‘On Liberty’.
An important distinction: Self-regarding vs. other-regarding actions

Self-regarding actions are those which affect only the agent himself.
For the Harm Principle to apply, the agent in question must be an adult, fully in control of his or her faculties. A
true agent of an action is one who, with respect to that action, is:
1. Free (not coerced into performing an action).
2. Voluntary (competent to choose to perform an action).
3. Informed (has sufficient, relevant, information to choose to perform an action).

Other-regarding actions affect others.
In order for an action to be other-regarding, it must:
1. Violate a distinct and assignable (specific) obligation. [Has a significant effect on the other’s own liberty]
2. Or render the agent incapable of performing a specific duty to others.
So, in sum, we may restrict an act by law if it the action violates someone's rights. Otherwise, it may be punished
at most by opinion.
The relevance of the Harm Principle to freedom of expression:



Mill refers to freedom of speech as ‘Freedom of Thought and Discussion’ in ‘On Liberty’.
The limits on free speech here is very narrow because it is difficult to support the claim that most speech
actually causes harm to the rights of others. (Obviously violent expression is banned under the harm principle)
It becomes very difficult to defend free speech once it can be demonstrated that its practice actually does
invade the rights of others.
2. POWER RELATIONS
Remember, Mill is against:

Social Conformity – this leads to stagnation and cramping of choice, misery and a stunting of human
potential.

‘The tyranny of the majority’ – social pressures imposed by majority views can prevent some people from
carrying out experiments of living. Social pressure to conform can undermine freedom and level everyone
down to an unthinking mediocrity. In the end, this is worse for everybody
.
‘[T]here needs protection also against the tyranny of the prevailing opinion and feeling;
against the tendency of society to impose, by other means than civil penalties, its own
ideas and practices as rules of conduct on those who dissent from them; to fetter the
development, and, if possible, prevent the formation, of any individuality not in harmony
with its ways, and compel all characters to fashion themselves upon the model of its own.’
This is because Mill is for:

‘Experiments of the living’ – as with empiricism (gaining knowledge through experience and observation),
Mill thinks that only by trying out different solutions to the human predicament will a society flourish. This is
the route to social improvement: ‘Mankind are greater gainers by suffering each other to live as seems
good to themselves, than by compelling each to live as seems good to the rest.’

To this end, freedom of expression is required as it will help humanity, and society, to progress.
3. CONTEXT
Mill's formulation of the harm principle suggests only speech that directly harms the rights of others in an
illegitimate manner should be banned; finding such material offensive, obscene or outrageous is not
sufficient grounds for prohibition. The reason why is to do, again, with experiments of the living.
Mill’s main stance is that greater damage is caused by suppressing a view even if that view is false, than by
allowing it to be freely expressed.
Mill’s justification for this stance is that if a view is controversial, then there are three possibilities:
a) the view is true
b) the view is false
c) though the view is false, it may contain some truth
By debating the view (e.g. we saw a Holocaust denial) we can learn from this discussion.
Concerning censorship:

Censorship should only be allowed in speech or writing if there is a clear risk of incitement to violence.

Context (the circumstances relevant to an event) can affect the dangerousness of speech and writing.
Mill’s example: it would be acceptable to print in a
newspaper the view that corn-dealers starve the
poor. However, if the same words were spoken to an
angry mob outside a corn-dealer’s house then we
would have good grounds for silencing the speaker.
The high risk of inciting a riot would justify the
intervention.
Q. What do you think of Mill’s example? Is there any difference between the two contexts he gives?
4. TOLERANCE ITSELF




We have pointed out already that it is difficult to prove whether freedom of speech directly harms the rights of
others.
However, this isn’t all that matters when discussing freedom of expression (including reactions to
controversial speech as we will see in our examples) in terms of tolerance.
For example, does tolerance limit free expression itself (does the concept of tolerance necessarily require
restraint of our expression)?
Or is tolerance limited by free expression (is this freedom too important to give up for the purpose of
tolerance)?
Potential answers to such a question will come out in our discussion when applying tolerance to two
particular examples of conflicts concerning freedom of expression:
o The Muhammad cartoons controversy
o Pornography