Freedom of Expression at the Expense of Vulnerable Individuals
Freedom of Expression at the Expense of Vulnerable Individuals In 1978 the Nationalist Socialist Party of America (NSPA), a Neo-Nazi political group, planned a march to the front of a village hall of the Village of Skokie. The Village of Skokie has a large Jewish population, which includes several thousand Holocaust survivors. The NSPA applied for a permit for the march, and the courts refused. The case, Collin v. Smith (1978), was brought to the U.S. Court of Appeals for the Seventh Circuit under the premise that the refusal to grant the march permit was a violation of the First Amendment, the Freedom of Speech. [1] The court ruled in favor of the NSPA despite the mental and emotional distress that this march would inflict on the residents of the Village of Skokie. [2] The Court held that the government has no power to restrict an act of expression based on its message, idea, subject matter, or content. [3] This case raises the question: under what circumstances can the state interfere with free expression? How is Freedom of Speech protected at the cost of individuals' feelings of safety? In liberal democratic societies like the U.S., we protect “speech” or “expression” from the interference of the state even if these acts have harmful consequences, as in Collin v. Smith, but is this morally sound?
In order to establish a clear understanding of the complexities of state interference in Freedom of Speech, we must ask ourselves: why do we protect Freedom of Speech? We protect free speech; otherwise, there will be a suppression of truth that can only be reached through discussion and access to varying opinions. However, this does not mean that all acts of expression are protected by the law; acts of expression like libel, inciting a riot, copyright, marketing cigarettes to children, etc., are all acts that are interfered with by the government. Furthermore, some acts protected by the First Amendment aren’t technically “speech” but rather expression acts like print, film, marches, etc. In this paper, I will be using Thomas Scanlon’s definition of acts of expression: “any act that is intended by its agent to communicate to one or more persons some proposition or attitude.” [4]
Thomas Scanlon in “A Theory of Freedom of Expression” offers a theory of what acts should warrant state interference and when acts of expression should enjoy special protection. Scanlon starts his theory by posing the question: why is certain speech/expression given special legal protection, and where do we draw the line in determining what acts of expression are inviolable? First, it is important to establish that Scanlon argues that there is no non-arbitrary way to narrow the definition of acts of expression to include only those cases that should enjoy special protection. Some expressive acts result in harm, but these harms are just pro tanto considerations when deciding whether to prohibit these acts. Scanlon “consider[s] a number of different ways in which acts of expression can bring about harms, concentrating on cases where these harms clearly can be counted as reasons for restricting the acts that give rise to them.” [5] These expressive acts are (i) acts that cause injury like causing an avalanche by yodeling, (ii) acts that “intentionally places another in the apprehension of imminent bodily harm like a bomb threat”, (iii) acts that harm a person by causing an adverse opinion like defamation, (iv) acts that incite fear and injury like shouting fire in a crowded theater, (v) acts that can contribute to the harmful acts caused by another like ordering someone to commit a harmful act, and (vi) publication of information that gives people access to information that will help them cause harm like publishing how to make nerve gas. [6] As Scanlon states, “I am not maintaining in any of these cases that the harms in question are always sufficient justification for restrictions on expression, but only that they can always be taken into account.” (Ibid) Scanlon provides this narrow number of harm-inflicting forms of expression as a guide to restriction on freedom of expression as a way to combat the inviolable nature that he sets out to address.
Scanlon’s principle of freedom of expression is “a natural extension of the thesis Mill defends in Chapter II of On Liberty,” which he calls the Millian Principle. [7] The Millian Principle is that “[A] legitimate government is one whose authority citizens can recognize while still regarding themselves as equal, autonomous rational agents.” [8] Scanlon believes that the Millian Principle treats harmful outcomes of expressive acts as a pro tanto ground for the state to restrict speech in alignment with the six expressive acts outlined in his argument. If the government contravenes the Millian Principle and restricts speech (a) in order to protect a citizen from having false beliefs, or (b) restricts “harmful consequences of acts performed as a result of those acts of expression, where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing” then this restriction would mean that citizens are giving up their autonomy to create beliefs and actions for themselves and therefore the government would be illegitimate. [9] According to Mill, speech can only be restricted if it is in direct violation of political rights. Scanlon agrees with the importance of autonomy in the Millian Principle; he states, “to regard himself as autonomous in the sense I have in mind, a person must see himself as sovereign in deciding what to believe and in weighing competing reasons for action.” [10] Furthermore, what is crucial to the autonomy of a person is the recognition that a decision is settled by their own decision rather than what is decreed by the law. [11] It could be argued that the government has a duty to protect citizens from false information; however, as Mill and Scanlon argue, people would be bound to accept the state’s judgment on what opinions are false. [12]
Scanlon’s argument, in alignment with the Millian Principle, is an autonomy-based argument. Scanlon is not arguing that citizens have the right to be completely autonomous and have access to all information needed to make a completely independent and informed decision. [13] Instead, Scanlon is arguing that the government should not undermine autonomy by restricting access to information or opinions. [14] The Millian Principle is not able to encompass all cases that would be an infringement of freedom of expression, but the foundation of the Millian Principle is grounded in allowing people to express and hear all opinions without restriction from the state. I believe the Millian Principle and Scanlon’s autonomy-based approach to freedom of expression are not completely morally sound. I would argue in favor of a value-based approach to freedom of expression that requires state involvement when acts of expression incite harm, whether physical, emotional, or psychological, to vulnerable individuals and groups. There are two principles I would add to Scanlon’s pro tanto restrictions on free expression: (i) acts of expression that directly harm vulnerable groups with a targeted approach like hate speech, and (ii) acts of expression that portray harmful acts to vulnerable groups like distributing child pornography. This value-based principle would be applied pro tanto in accordance with a just and democratic government. The government has a duty to protect the rights of individuals that make them autonomous beings, like the First Amendment; however, there is also a duty to protect vulnerable groups from harm.
My first principle is acts of expression that directly harm vulnerable groups with targeted acts, including hate speech and other acts of hate towards vulnerable groups like minorities, the elderly, children, animals, etc. In this paper, I will use David Boonin’s definition of hate speech: “Hate speech refers to verbal or written attacks on people that target them because of their group membership, where this at least includes their race or ethnicity and may well include other characteristics like religion, gender, and sexual orientation.” [15] I will be extending this definition to include all acts of expression, not just written or verbal, to align with Scanlon’s broader definition of acts of expression. My first proposed principle would apply to the case, Collin v. Smith, mentioned at the beginning of this paper. In this case, the Court argued in favor of what Scanlon’s autonomy-based argument would have called for. The state can’t stop people from having hateful opinions or expressing hatred in their communities or depicting illegal and threatening activities, but it can prevent the spread of hate speech or other expressions that target vulnerable individuals or groups by protecting individuals from harm, whether that is emotional trauma. In the case of the Jewish residents of the Village of Skokie, the state protected the rights of the NSPA in accordance with the First Amendment, without regard for the traumatic emotional distress it would have on Holocaust survivors. Scanlon would argue in alignment with the Court's ruling, as it does not cause harm that aligns with the six principles he outlines. In contrast to Scanlon, I argue that the act of expression by planning a Neo-Nazi march with participants wearing swastikas should not be interfered with by the state; however, if the march infringes on the emotional safety of others, like the residents of Skokie, then the state has a right to interfere. It could be contended that this principle would contradict the basis of the Millian Principle, but I argue that hate speech like the Neo-Nazi march would constitute a violation of the political rights of a citizen and therefore would be supported by Mill and would not compromise clause A or B of the Millian Principle. Of course, freedom of expression is grounded in allowing people to hear all opinions, but if these opinions cause mental anguish to a person or group, then it infringes on their political rights and gives the state the right to interfere.
Two important questions and arguments against this principle are: how far can this principle extend? And will provocative or hateful opinions be suppressed with the claim that they cause emotional distress? For example, the state should not interfere with the statement “homosexuality is a sin,” even though it may upset those who identify as homosexual. The state, however, could interfere if there was an organized picket outside of a gay bar (and thereby specifically targeting gay people) proclaiming that homosexuality is a sin. Similar to the march in Skokie, this is a targeted act that causes emotional distress and trauma. If the march were to take place in a town that happened to have Jewish residents or a picket that took place somewhere that a gay person happened to be, then this would not warrant interference from the state. The principle solely applies to acts that are enacted in order to cause distress in a targeted community.
The second principle, acts of expression that portray harmful acts to vulnerable groups, would be directly contradictory to clause B of the Millian Principle, as well as not aligning with Scanlon’s beliefs. In a court case United States v. Stevens (2010), Robert Stevens was convicted for selling videos of animal cruelty; this is a conviction of portrayals of harmful acts not the underlying harm of any animals involved in the videos which is why this is a Freedom of Speech case rather than an animal cruelty case. [16] Stevens argued that a law against depictions of animal cruelty was unconstitutional because it violated the First Amendment. [17] The Supreme Court held that this law was too broad and did infringe on the First Amendment, and therefore overturned the ban on animal cruelty images as overly broad. [18] In agreement with the Supreme Court’s decision, clause B of the Millian Principle states that the state cannot restrict the advocacy of illegal activity because individuals must have the autonomy to decide whether they desire to obey a particular law. Therefore, if the video were to incite someone to commit animal cruelty, that is their autonomous decision, and suppressing an act of expression like animal cruelty videos should not be restricted. I contend that this is an immoral ruling that can cause further harm. Justice Samuel A. Alito disagreed with the majority opinion and argued that the law was not intended to suppress speech but to “prevent horrific acts of animal cruelty.” [19] He argued that overturning the law would allow for production and, therefore, incite further cruelty to animals for commercial purposes. [20] I agree with Justice Alito and believe that although the state should allow individuals to make autonomous decisions, if depictions of cruelty to vulnerable groups lead to further harmful action, then they should have the ability to restrict the act. In the case of animal cruelty videos and child pornography, the consumption can lead to the further production of these depictions and therefore the further endangerment of vulnerable individuals. Moreover, and more importantly, it has been found that people who download child pornography are more likely to commit acts of sexual abuse against minors. [21] It is also shown that people, especially minors, who are exposed to animal cruelty are more likely to perpetuate the cycle of violence, and sometimes progress to human violence, due to a desensitization to violence. [22] Therefore, in accordance with the state's duty to protect its civilians, it must restrict acts of expression that are directly correlated with harm to vulnerable groups and individuals.
Freedom of Speech is a crucial right in order to avoid suppressing the truth, according to Scanlon and the Millian Principle. If we abide by this fundamental foundation of the First Amendment, then it begs the question: Is the restriction of acts of expression that cause harm to vulnerable individuals and groups an obstruction to the truth? In a democratic and just society, it is imperative that individuals have the autonomy to make decisions, sometimes even if those decisions are violations of the law. Suppressing the truth and placing restrictions on the First Amendment to encourage only views that the government believes to be true would be tyrannical. I do agree with Scanlon that it is up to civilians to investigate varying opinions to decide what they believe to be the truth. However, if acts of expression can in any way harm vulnerable individuals, it is the state’s duty to restrict acts that perpetrate violent and cruel acts. Acts that directly harm groups through targeted means are threats to the well-being of individuals, and I believe, in a value-based argument, that it is the government’s duty to avoid this harm. Furthermore, acts that depict harm to vulnerable groups should also be restricted, due to the perpetuation of violence against these individuals that it encourages. These restrictions, I argue, may be suppressing a certain kind of truth, but these truths should not come at the expense of the safety and well-being of civilians.
Bibliography
[1] “Collin v. Smith - 578 F.2d 1197 (7th Cir. 1978).” LexisNexis, LexisNexis, https://www.lexisnexis.com/community/casebrief/p/casebrief-collin-v-smith.
[2] Ibid.
[3] Ibid.
[4] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971.
[5] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 209.
[6] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 210.
[7] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 213.
[8] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 214.
[9] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 213.
[10] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 215.
[11] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 216.
[12] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 218.
[13] Scanlon, Thomas. “A Theory of Freedom of Expression.” Philosophy & Public Affairs 1, no. 2 (Winter 1972): 204–226. https://www.jstor.org/stable/2264971, 221.
[14] Ibid.
[15] Boonin, David. Should Race Matter?: Unusual Answers to the Usual Questions. Cambridge: Cambridge University Press, 2011.
[16] United States v. Stevens, 559 U.S. 460 (2010)
[17] Ibid.
[18] Ibid.
[19] Hudson, David L. “United States v. Stevens (2010).” The First Amendment Encyclopedia, Middle Tennessee State University, https://www.mtsu.edu/first-amendment/article/1480/united-states-v-stevens.
[20] Ibid.
[21] Sher, Julian, and Benedict Carey. “Debate on Child Pornography's Link to Molesting.” The New York Times, The New York Times, 19 July 2007, https://www.nytimes.com/2007/07/19/us/19sex.html.
[22] “The Link between Animal Cruelty and Human Violence.” FBI, FBI, 10 Aug. 2021, https://leb.fbi.gov/articles/featured-articles/the-link-between-animal-cruelty-and-human-violence