In Part 1 I outlined a distinction between positive freedom and negative freedom, and argued that freedom of expression should be seen as a negative liberty. In Part 2 I provided a further distinction; freedom of expression is a civil liberty, rather than a social liberty. Part 3 specifies what an ‘act of expression’ really is.
What is it that we should have the freedom of in this negative and civil sense, then? When we talk about ‘freedom of expression’ it is clear that we are not limiting ourselves to verbal utterances. We include the written word, artwork, music and so on. Discussions on freedom of expression tend to often refer to ‘free speech’, yet I believe that ‘expression’ is closer to capturing what we mean (this is including ‘hate speech’, which might well be called ‘hate expression’). Following T. M. Scanlon I take it that ‘expression’ can be defined as an act that is “intended by its agent to communicate to one or more persons some proposition or attitude.”1, and this definition seems to capture everything we mean by ‘expression’, including the sorts of acts mentioned above. Contrast this with ‘speech’, which implies words or noises uttered verbally. However, not all speech is expression. Suppose Jane has an unusual sort of weapon; a gun that is triggered whenever somebody says the word “shoot”. If Jane points the gun at an unfortunate victim and utters the trigger-word, then Jane is guilty of murder. Jane did not intend to communicate anything any more than she would have done by pulling the trigger of a conventional gun. It is true that the act of firing the gun might have communicated a wish for the victim to die, but this was not the intention of the utterance, and therefore it was not an act of expression.
I think that there is a useful distinction to be made between acts of expression and acts that are expressive. If I distribute a leaflet that insults a local politician then undoubtedly that is an act of expression; I am intentionally communicating my dislike of the politician to the group of people who read the leaflet. Another way I may communicate my criticism is by vandalising the house of the politician. Those who see and hear of my act (including the politician themselves) come to recognise my dislike of the politician as a result of the act itself. The act of vandalism communicates the same sort of proposition that the leaflet does; simply that I dislike the politician. In the first case, the leaflet is an act of expression, i.e. an act with the sole purpose of communicating some proposition or attitude. However, in the second case my intention was not to communicate anything at all. My dislike of the politician led me to vandalise their house, and this act had the added effect of expressing my disdain for the politician. Acts like this are expressive, rather than acts of expression. So the distinction is between acts that are intended to express a proposition or attitude and acts that merely end up expressing a proposition or attitude. My purpose in making this distinction is that freedom of expression need not cover acts that are not solely intended to express something. Acts of vandalism should be seen as criminal acts for reasons other than the attitudinal content they end up communicating.
The position I am arguing for in this series, freedom of expression, might therefore mean that acts intended to communicate a proposition or attitude should be left alone by the state. However, this still does not seem quite right. If I carve a message I intend to communicate into another person’s flesh with a knife, this would seem to count as ‘expression’ under Scanlon’s definition. It is, after all, an act intended to communicate a proposition. Of course, it is not something we want covered by freedom of expression; it involves sticking a knife into another person! It is tempting to try to look for a condition that would exclude such cases from the class of ‘acts of expression’, but that would be a mistake in my opinion. Clearly the fact that it is intended as an act of communication (albeit a rather strange one) means that it is an act of expression (and we would intuitively call it such), and so there seems to be no way of justifying this arbitrary division. I do not think this is a problem for freedom of expression, as will become clear when we think about what I will refer to as the coverage of freedom of expression.
So stay tuned for Part IV!
1 Scanlon, T.M., (1972). “A Theory of Freedom of Expression”. Philosophy and Public Affairs, Vol. 1, No. 2. (Winter, 1972), pp. 204-226.