The Argument from Truth as a Basis for Legislation concerning Freedom of Speech

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1. Are consequentalist justifications of free speech necessarily implausible?

In recent discussion on free speech the so-called argument from truth has been evaluated from various perspectives. In what follows I would briefly like to comment on some of the recent contributions.

Many diverse arguments in defence of the freedom of expression of opinion have been popular through the years, but it is not an exaggeration to claim that the predominant argument in Western political thought has been the view that free speech is valuable and should be promoted because it leads to the discovery of truth. An early formulation of the argument from truth, as it is nowadays called, was made by John Milton in his Areopagitica (1968/1644). As is well known, however, the first systematic defence of the argument from truth comes from John Stuart Mill. In On Liberty (1977/1859:258) he summarizes the bases of the argument as follows:

   First, if any opinion is compelled to silence, that opinion may,
   for aught we can certainly know, be true. To deny this is to assume
   our own infallibility. Secondly, though the silenced opinion be an
   error, it may, and very commonly does, contain a portion of truth;
   and since the general or prevailing opinion on any subject is
   rarely or never the whole truth, it is only by the collision of
   adverse opinions that the remainder of the truth has any chance of
   being supplied. Thirdly, even if the received opinion be not only
   true, but the whole truth; unless it is suffered to be, and
   actually is, vigorously and earnestly contested, it will, by most
   of those who receive it, be held in the manner of a prejudice, with
   little comprehension or feeling of its rational grounds. And
   fourthly, the meaning of the doctrine itself will be in danger of
   being lost, or enfeebled, and deprived of its vital effect on the
   character and conduct: the dogma becoming a mere formal profession.

Needless to say, there has been considerable discussion on what Mill really intended to say with his argument, and it is not surprising that the argument from truth can be and has been interpreted in various ways (see e.g. Crisp 1997:189-199, Gordon, 1997:235-249, Ladenson 1997:251-276, Day 1998:41-45, 2000: 189-194, Riley 1998:55-71, & Peonidis 2002:606-613). Some interpretations are consequential, while others are deontological; some interpretations are based on the positive value of knowledge, while others are based on the negative value of ignorance, or on the value of individuals' possibility to seek knowledge (Barry 2001:122), and so on.

Perhaps the most common objection to the argument from truth is directed against the typical version that states simply that truth has the best chances to emerge when opinions are allowed to compete freely in the "marketplace of ideas", and that this is why there should be no restrictive legal speech regulations. The objection is that the argument makes freedom of speech depend on a contingent fact, namely, that unrestrictive laws often merely happen to contribute to truth and growth of knowledge. This point was recently made for instance by Susan J. Brison, who argues that "[i]f speech is to be protected solely on the basis of controversial empirical claims about the positive effects of free speech and the negative effects of restrictions (rather than on the grounds that speech is intrinsically worthy of protection), then this leaves the right to free speech vulnerable to being outweighed by the benefits of restrictions if the scales happen to tip the other way" (Brison 1998:321-322). This objection is reasonable in the sense that sometimes the constraints on conversation imposed by the government, not freedom, are those that serve truth. As pointed out, for instance, in many American law journals, laissez faire rules are certainly not always optimal from the point of view of knowledge growth (see e. …