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 specified what an ‘act of expression’ really is, and this part combines the two concepts by considering the ‘coverage’ of freedom of expression.
Having clearly defined what sort of ‘freedom’ I mean and what sort of acts count as ‘expression’, we must now consider what ‘freedom of expression’ means. This is not as easy as simply combining our two concepts; freedom of expression has a ‘coverage’ over a class of acts but the case of the message carved in flesh provided an example of an act of expression that should not be free. It is therefore not the case that all acts of expression should be free. This should give us pause: what is meant by ‘freedom of expression’ if not that all acts of expression should be free? To answer this, we need to consider just what is being restricted in acts like that of the carving of the message in the flesh. We already know that such an act should be prohibited without needing to know what the message was about. The message itself might be perfectly acceptable. What justifies us in wanting such acts to be illegal is that they involve the direct harm of another human being; breaking a law that would already be in existence for reasons entirely apart from those attempting to justify restrictions on expression. Put another way, these restrictions are not what Waldron calls “content-based” restrictions1. If it is possible (within the existing framework of the law) that an act of expression would have been unrestricted if the content of the communication (i.e. the proposition or attitude itself) was changed in a particular way, then we may say that such a restriction is content-based. So carving a message into someone’s flesh would be assault, and the prohibitions on assault are not content-based, as it makes no difference to the charge what the message actually said. An example of a content-based restriction would be the arrest of six men in 2010 for burning copies of the Koran and posting a video of the act online. The arrest was for ‘inciting racial hatred’, as the act was undoubtedly deeply offensive to many Muslims. The act of simply burning one’s own books is not prohibited however, and the charge of ‘inciting racial hatred’ was based on the message sent out by burning the holy book of Islam and publicising it, especially as the video in question was full of racist implications. If it had been another book such that a different message was sent out, one not thought to incite racial hatred, then such a restriction would not apply. So restrictions placed on acts like this are content-based, as it is the content of the message that they seek to restrict, a message in this case that is thought to incite hatred of racial minorities.
I believe freedom of expression should cover the expressive content of an act, but not necessarily the act itself. This would entail that the act of publicly burning the Koran (while still deeply offensive to many people) should not be restricted by the state (i.e. civil restriction). That is not to say that there could not be social restrictions to such acts, such as the site to which the video was uploaded taking down the video and closing the uploader’s account, and the offenders being met with heavy criticism by people who oppose that sort of insensitivity. So the freedom of expression that I intend to argue for can be captured by the principle that no act of expression should be restricted by the state based on the expression’s content. Having stated my position, I must now consider whether it is a defensible one.
There are two ways one might defend freedom of expression: the first is a consequentialist approach and the second is a deontological rights-based approach. Which is preferable? I will argue that both approaches are appropriate. For the most part, the consequentialist arguments will do. However, there are certain acts of expression that no consequentialist argument that I know of will justify keeping it unregulated by content-based restrictions. I think that the deontological approach is successful in justifying freedom in these cases, but why not then do away with the consequentialist arguments altogether? I can think of two reasons why both kinds of justification are useful. Firstly, I believe that, while the consequentialist arguments may not be able to justify freedom of expression in every case, I do think that the justification it does provide is a much stronger justification than the one given by the deontological approach. Secondly, I think that the acts covered by the consequentialist arguments are the most important to keep free of state regulation (because they are covered by those arguments), so having multiple reasons for keeping them free is desirable. Therefore, if the deontological arguments are unsound, we will still have a firm basis from which to argue for freedom of expression in all but the most marginal cases.
1 Waldron, J. (2012) The Harm in Hate Speech. Cambridge, MA: Harvard University Press (pp. 150)
