Freedom of Expression: A Recognitional Defence

Abstract

In the voluminous literature on free speech, a central focus has been whether to regulate speech when harm to others is involved, such as hate speech or pornography. This appears to involve balancing speech against competing normative considerations. Less attention has been paid to the philosophical foundations of free speech where the classic justifications through the values of autonomy, democracy or the search for truth continue to prevail. In the first part of this paper, I argue that none of these approaches meet three intuitive desiderata of an acceptable justification for free speech. First, it must show free speech’s special value over liberty in general, for which there is a presumption; second, it should establish which forms of speech themselves merit especially stringent protection. A cogent justification should also explain when speech should be regulated without resorting to a balancing test with its dangers of value incommensurability or arbitrary judgement. For example, the speaker autonomy theory doesn’t obviously privilege speech over other forms of autonomous conduct; under-protects intuitively high value non-autonomous speech, such as between members of an orthodox religious order; and leaves us comparing hate speaker’s autonomy with the setback to hate speech’s victims whose autonomy is impaired. I go on to outline a recognitive view of free speech, one where, in expressing ourselves to another person, we implicitly treat her as an agent with her own views, who is responsive to our speech, and answerable to others. Conversely in receiving the speech of another individual, we recognise that she too is an agent with a view of her own, with authority to express her views, and again, answerable to others. If speaker A treated individual B merely as a thing, so that B’s speech had no uptake for A, then B would intuitively lack speech, but so would A since her speech would lack a rational addressee. Similarly, if A assumed she could command B at will, she would forfeit her answerability to B, and fail to recognise B’s authority as a speaker. The intrinsic value of speech, on the recognitional view, is that through it individuals are able to affirm, as speakers and receivers, each other’s status as a participant in speech. This is true also of written expression, where a writer assumes the authority to express his views to readers, and assumes those readers have the capacity to consider his words and (if appropriate) act on their basis – and are therefore accountable agents. In many instances of speech, there is disagreement over norms, rules, practices etc shared between parties. In such cases individuals may recognise each other as enjoying some normative authority to propose, revise, and contest those norms etc through their interaction with others. (This could range from a family discussion about the division of domestic labour, to a formal election campaign). This is the extrinsic value of recognitive speech: it is a constitutive part of the inter-subjective regulation of normative authority. The recognitive view meets the three desiderata. First, it claims that speech’s value over liberty in general lies in the mutual recognition of normative status so described, where not all conduct has this expressive dimension. Second, it says that speech implicated in deliberation over shared norms and rules has special value. Third, I claim that one (not necessarily the only) harm of hate speech and pornography is that they fail to recognise the authority of victims to express their views to others; these kinds of speech are not answerable to them. We do not need to balance speakers’ against receivers’ interests because speech which misrecognises others in this sense does not count in the scales as the kind of speech which merits protection. Hence the recognitional view offers an intuitively satisfactory theory of speech with advantages over the classic theories.