AS/POLS 2900.6A
  Perspectives on Politics
2010-11

March 22 – A Utilitarian Argument for Freedom of Expression

The first part of Mill’s response to the dilemma he faced is his justification of and argument for freedom as laid out in On Liberty. The second, to be dealt with next week will be his proposal for representative government in the book by that name. On Liberty is certainly Mill’s greatest and longest-lasting contribution to political theory and one of the finest expressions of the liberal spirit. Yet it is a book that in spite of having some wonderful arguments, is also faulted by a number of evasions and contradictions. The fact that I will concentrate on what seems most problematic in On Liberty should not, however, be taken to mean that I, or one, could not also support many of Mill’s aims.

One of the main things that Mill learned from aristocrats reacting to the growth of democracy and social equality is that equality is something to be feared, that the vast majority of the “common people” are to be feared for more than their troublesome propensity every once in a while to engage in revolt; they were now to be feared as a growing power within civilization itself. They were to be feared as a coherent, somewhat insidious force, that threatened to undo the progress of civilization from within by subverting the spirit of liberty in favour of narrow minded conformity.

Now, earlier liberalism had focused its fears for the individual on the potentially oppressive power of governments, or of organized factions, “sinister interests”, minorities that could take over and use the power of governments. But Mill is discovering that there is another possible source of danger to the individual. And this now comes, for the first time, from outside the political sphere proper. It is the power of “public opinion” – or perhaps of what we might have more recently called “mass culture”.  As Mill puts it, “There needs to be protection against the tyranny of prevailing opinion and feeling, against the tendency of society to impose, by means other than civil penalties, its own ideas and practices as rules of conduct on those who dissent… to fetter the development and, if possible, to prevent the formation of any individuality… and compel all characters to fashion themselves on the model of its own.”

So the danger is that the rise of the average person and his/her claim to be treated as an equal will give rise to the rule of conformity. And after Mill, liberalism will make this fear of conformity one of its permanent central concerns, all the way through to post-modern forms of radical liberalism. Now what is new in this fear of conformity is that Mill is no longer focused exclusively on the pressure for conformity coming from the state (or the state religion). Any form of social power that makes the individual fearful to develop in his own direction, afraid to appear eccentric or deviant, afraid to be seen doing something that “they” would not consider normal – any form of individual expression that inhibits individual expression is to be resisted, whether it comes officially from the state, or more subtly from the pressure of public opinion or even common tastes. For Mill, individual development would be stunted  or impossible when our actions are simply adaptations to some already existing code. Under those conditions the human faculties are not exerted and consequently atrophy. It becomes as though they never existed.

On Liberty is, then, to a very large degree about the necessity not to enforce morals. But Mill is and remains a utilitarian and therefore cannot appeal to any natural right inherent in the individual upon which society ought not to intrude. The argument in favour of a maximum of individual freedom of expression is going to have to be put in terms of  how freedom of expression is necessary and essential to the greatest good of the greatest number. The central formula that Mill proposes in order to protect liberty  -- the formula for which he will have to provide a separate, new defense – goes as follows: “The sole ends for which mankind are warranted, individually and collectively, in interfering with the liberty of action of any of their number is self-protection.”

Now, this formula, or principle if you like, implies a strict distinction between two different types of action and two different spheres of human life, a distinction between a self-regarding act or sphere and an other-regarding act or sphere. In the other-regarding sphere, i.e. the area where our actions (or non-actions) affect others, interference is allowed, even though that interference is to be limited and guided by the principle of utility. In the sphere in which your actions affect the happiness of others you may only be limited in such a way as is consistent with the greatest good of the greatest number.

But there is also a sphere, according to Mill, in which action is purely self-regarding. Here your actions are not relevant to anyone else. Action here does not affect the greatest good of the greatest number. In the self-regarding sphere you would have no power to harm others.  So, Mill is saying that you can be interfered with, but only where you have a duty; and you only have a duty where your actions have the power to harm others. Conversely, in the self-regarding sphere, you have no duties. There are no duties to yourself. What you do there is entirely your own business, and no one can tell you what to do with it…

Now this sounds all very good and well. But it is when we get down to specific cases that the weakness in this doctrine begins to display itself. And it is a rather dangerous weakness in one of the central beliefs of all liberalism – the belief in the priority of the individual. Remember, the belief in the priority of the individual does not mean the belief that the individual is the highest good or is more important or valuable than society – virtually all political viewpoints hold that to be true and each will argue that its understanding of individuality really assigns the highest moral priority to the individual. We are not talking about the moral (or “axiological”) priority of the individual, but about the ontological priority of the individual (which is prior in the order of being). And liberalism (versus conservatism or socialism) holds that the individual is prior in the sense that for society to exist at all we have to assume the essential independence of the individual from it. Priority in “the order of being” means that the individual is a substance unto himself, essentially self-sufficient, independent and not formed as an individual, in and through, or even in and through a reaction to what is not the individual.

Now there are some cases where Mill’s rule seems to work fairly well. He gives the example of someone crossing a rickety bridge that I know to be unsafe. As long as we supply enough conditions – we know that no one else is on the bridge, that itt won’t collapse on anyone’s head or on their property – as long as we know it is truly and purely a self-regarding action, then we should not interfere with her putting herself in danger of harm. But the fact that so many other conditions have to be supplied should warn you that in fact this rule may not be as useful as Mill claims it is, i.e. as a quick and sure solution to the problem of limiting and legitimating interference with the individual. (There is also something else to keep in mind: that in giving you a principle that limits interference, he is also legitimating all the interference that falls outside the limiting boundary – we’ll come back to this in the example of proletarian marriages)

There are really two problems here: you could argue that there is no such thing as a truly self-regarding act, that anything we do, or even refrain from doing, does affect others (and materially). In the age of dawning ecological consciousness this weighs on our awareness a little more every day: each time I go to the grocery store to buy too many and too many over-packaged goods, or drive my car, or turn up the heat in my house there is a little worry (and a justified one) about the greenhouse effect and global warming. Each time someone flushes a toilet, we are aware of the extra x litres  of fresh water that could be denied the next generation. What appears to be self-regarding may not be so, and what appears to be trivial and incapable of causing harm to people may not be so…

Secondly, you could argue that even if there are purely self-regarding acts, they will inevitably turn out to be trivial – virtually by definition: a self–regarding act is one that does not have the power to affect others. What acts are there that are significant for me that do not have the power to affect others? How valuable to my individuality is that self-regarding act? How valuable is a liberty to perform acts that are powerless? How much liberty is Mill really granting the individual here?

Let’s take another example: Mill argues that under his principle you may compel the state to interfere with industry, but only for such purposes as protecting the public health. Obviously industry, then, does not belong to the self-regarding sphere. But there is an escape clause. Interference in the other-regarding sphere is itself limited by the greatest happiness of the greatest number principle. So industry may be allowed to produce harmful effects on others, if that harm is tied to the production of even greater benefits for the greatest number.

How much use is this distinction? Is it a distinction of convenience not only for Mill but for anyone who simply accepts it at face value? Mill, for example, will argue in On Liberty that the individual may be prohibited from marrying and raising children unless she/he can demonstrate that they have the means of supporting them, because over-population is the primary reason for the economic misery of the lower classes. Isn’t this distinction open to misuse then on two counts:

1. Almost any act of any significance can arguably be defined as either self- or other- regarding, because what we are really dealing with here is a matter of degree, and

2. among other-regarding acts, the room for creative accounting in the calculation of happiness is virtually limitless (industries can pollute because that is economic growth, but people can’t have too many children because it swells the welfare rolls).

Let’s take one last example from On Liberty. Mill, because he says that he is very much opposed to “an education of restraint” as an improper way to govern the lower classes, was very much against the prohibition of alcoholic beverages (although he did suggest the use of various indirect controls such as licensing of establishments, prohibitions of sale, but not of use [a de facto policy we’ll probably soon have in Canada with relation to marijuana]). So the lower classes may not marry and have children, if their economic position is precarious, but they may drink themselves into utter insensibility…

What it really seems to boil down to in practice is a matter of a balancing of values. Mill is not really offering a clear-cut rule that will provide a pure sort of justice. What he is instead doing is maintaining that the value of the liberty of the individual to get out from under the suffocating herd is so great that the burden of proof should always rest with the side that wants to restrict liberty. Any argument that would restrict the liberty of the individual to do as she/he pleases must first establish that a particular act does have harmful consequences; then, that these consequences are significant and that these harmful consequences are not outweighed by other beneficial consequences . At least a presumption of innocence lies with the individual, no matter how outrageous or eccentric the act. And this is the sort of thing that the courts are dealing with on a daily basis, in for example, decisions on matters like the extent of free speech, or the powers of government to regulate pollution or safe conditions in the workplace, and so on…

Now, it is plain that in our society individual liberty is in need of this kind of protection, and it would be naïve in the extreme to think that it will not remain in need of it for a long time to come. But Mill’s case as a whole fundamentally rests clearly on a balancing of values. And a legitimate question here is whose values and which values? And where did these values come from? (Sorry, that’s three, though linked, questions)

There are no naturally or purely self- or other- regarding acts. There is no self-evident sphere of privacy. It is society in fact that in the end will define which acts are to be treated as self- or as other-regarding because all acts are both to some degree or other. The defense of liberty therefore rests on establishing the all-but-supreme value of individual freedom of expression. But why is “free speech” so valuable as to be able to trump so many other possible values? How is it so supremely valuable to the greatest happiness of the greatest number?

Remember that what is truly distinctive in Mill’s argument in On Liberty is that  he is supplying a utilitarian justification of free speech. It is not a question of rights any longer. Rights for Mill, as for all utilitarians,  are only a confused and nearly superstitious way of talking about the greatest good of the greatest number. Yet Mill takes a very extreme position on the “right” (really the importance, desirability) of free speech: “If all mankind, he says, “minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power would be justified in silencing mankind.” Fighting words, indeed.

What ultimately justifies free speech for Mill is its utility in the discovery of truth and its necessity for the sake of progress. Any opinion may be true or have some truth, since for Mill, “there is no such thing as absolute certainty”. Although there is no absolute truth, there are relative truths, and this relative truth is something that can only be improved or perfected by individuals who are not already stifled by the conformitarian pressures of society. But the only reason to hold any belief is that it has stood the test of free competition with other beliefs. The utility of liberty is therefore as a means to truth and progress towards truth. Progress can only be made by free-thinking individuals, by people who think for themselves. The hope is that we will, out of and because of, an extreme diversity of opinions, move towards an increasing consensus and even unanimity. What happens then? At that point, values would no longer be in dispute, and human affairs would then be open to scientific management.

Thus it seems that that freedom of speech finds its value and justification only partly in the role it might play in the intellectual and psychological development of the mass of the people. That might be one of its effects, but it would perhaps not be the more important. The truly important function of free speech for Mill is in furthering, bringing closer that time when politics as the expression and rapprochement of different values will no longer be necessary. And the implication is that what is really necessary is freedom for an intellectual elite to sharpen its scientific understanding of society and guide the vast majority of the  common people towards that infinitely distant goal.

Mill is careful to deny that what he has in mind is any kind of intellectual hero worship that would diminish the importance of what he calls “an intellectually active people”. Yet qualitative differences in intelligence, and in political intelligence, are, in his mind, not only a part of the present situation, but are here to stay indefinitely. Thus he can, at one and the same time, oppose and warn against what he calls “a general atmosphere of mental slavery”, yet draw back from the prospect of full democracy. There is, and always will be, too much distance between great and small minds for everyone to have an equal share in political power. And, according to him, what constitutes the “honour and glory of the average man” is in being capable of following the great mind.

Mill began his defense of liberty in the fear that the great majority who are about to have power thrust into their hands will not be able to restrain themselves from grave misuse of that newfound power. He begaon from the fear that the force of public opinion will be added to the force of the state. In the end he has no better way of defending freedom of speech other than pleading with the majority (who, after all, might not need to be preached to) that they should be tolerant and that they should wait; that the most important thing was to let the more enlightened and industrious and educated and leisured find their own way to the truth, because that is in the long-run enlightened self-interest of everyone. This is again the dilemma of the liberal beginning to lose faith in the masses. The motor of intellectual progress, from which all other progress flows is, for Mill, a marketplace of ideas. Freedom of discussion, like economic freedom, is a self-propelling device, almost an automatic device, leading to the production of truth.

We should not, for Mill, see here any greater conflict between individual freedom and social utility than there is conflict between individual economic freedom and the greatest social utlity. The idea-marketplace works just like the economic marketplace. The belief that there are inherent, structural class conflicts in the market is therefore here, as well as in economics, merely a product of ignorance and of the rule of short-run self-interest. In order to make this argument, Mill must assume that the people are both rational and irrational  -- rational enough to be amenable to persuasion along these lines, in terms of their own long-run self-interest as individuals, but irrational enough to need to be persuaded, to need to be shown what their own long-run self-interest is. This is the same assumption we will see surface again in relation to Representative Government.

But before we can go on to look at the second part of Mill’s response to his dilemma, we have to go further into On Liberty, and take a closer look at some of the assumptions underlying Mill’s distinction between self- and other- regarding acts.

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