Wednesday, September 27, 2006

*Freedom of Expression and Speech*

One of the classes I'm taking this Fall (acculturation by assimilation of their jargon and usage of terminology) is that of US Constitutional Law: 1st Amendment (actually somewhat misnamed because it was actually the 3rd amendment proposed, the first two did not receive sufficient state support).

Anyway, the discussion this week was about Incitement and the big discussion in class today was the following quote from Justice Robert Bork (yes, where the term Borking came from i.e. to impede the confirmation of a US Supreme Court judge) where he argues that there should be no Constitutional protection of speech advocating the violation of law. As a bare statement like that, it is arguably too extreme (but nevertheless a view held by at least 2 members of our class). And having not read the actual paper, I cannot necessarily comment on his argument and definately not on its nuance.

But what I want to do is basically examine my own personal stance and stand and hopefully come to a principled decision behind it.

First, I believe in JS Mills harm principle i.e. actions ought not be sanctioned unless it causes third party harm. My own personal spin on this is to assert that it ought only be physical harm and that mental anguish or torment ought not to be a criterion because down that path lies offensiveness as harm and the problem that entails when the violence hypersensitives cripple freedom of individual action.

Second, I believe in act utilitarianism i.e. the greatest happiness for the greatest good. But the question of whether I would allow 10 guilty persons to go free to save one innocent or to kill one innocent to save say the world must not be examined purely in that isolated example but must be examined as to whether as a rule, it is a good idea to do both or neither or either.

Thus, no freedom is absolute and definately no that of speech or expression. Where I personally draw the line is if the speech incites (as opposed to merely provoking) actions that create third party physical harm. Or is it really that simple? But nevertheless, keep in mind the above.

Let's turn now to an examination of the earlier bare statement.
1. Does speech have an intrinsic value?

I think it does (as vindication of personal autonomy and self-realisation), which is why I favour speech protection. If speech has no intrinsic value except insofar what societal utility it can bring (say an aggregation of individual utility although some may argue that it's too narrow and reductionist), then one may well and truely legitimately question what utility there is in advocating the violation of laws in a system that allows for changes in the law through the democratic process, which in turn is dependent on the free exchange of ideas which necessitates speech i.e. a liberal democracy

If so, then the advocacy of the violation of laws in this scenario undermines the sanctity of law by undermining the respect for law, creating and generating a greater propensity to dismiss and violate the law as well as undermining the liberal democratic process of fostering change and thereby jepodising the system.

I think the problem with that argument is that it assumes too much and erroneously conflates advocacy (even assuming it is effective) and the actual carrying out of the action (which is punishable anyway).

But furthermore, it is cultural specific and presumes a general right that societies have the right to self-preservation and perpetuation. The most immediate counter-example would be that of a totalitarian society.

At the same time, it might well be argued that if you have a society worth preserving which is contingent on the system not be perverted against itself, then a restriction on speech which advocates and actually incites people to destroy one of those prongs may then well be justified.

Let's concretise it into something more tangible. Where speech is made that:
a) goes beyond mere advocacy of an abstract theory (say a particular religious precept is incompetible with democracy) into
b)actual advocacy (you should do the following...) of
c) an actual violation of the law (the government must be overthrown by force and you should start by intimidating or hurting say A, B and others of their class) and
d) where the law in question is fundamental and inimical to the (liberal democratic) system (so advocating that people should not wear their selt-belts would be protected) and
e) it is clear that such an action would indeed be carried out beyond a reasonable doubt
f) within the near future (say maximum of half a year),
Then I think that such speech ought not to be protected. On a related note, I think that actual advocacy should not simply mean "go do so-so" but also the innuendo of King George type i.e. "will someone take care of this troublesome priest".

I don't think that this is indeed a complete analysis, there are things that I left out including whether a democracy really needs or should insulate/protect itself in that fashion or that it needs to rise beyond the fray in the self-same assurance that Fukuyama exhibited in The End of History. Or whether this merely corrects the imperfections in the freemarket of ideas such that it does not become a fishmarket. Or the value of civil disobedience etc.

Anyway, I hope this marks the tentative stage of my return to serious blogging.


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