A theory of freedom of expression
Persecution for the expression of opinions seems to me perfectly log-
ical. If you have no doubt of your premises or your power and want
a certain result with all your heart you naturally express your wishes
in law and sweep away all opposition. To allow opposition by speech
seems to indicate that you think the speech impotent, as when a man
says that he has squared the circle, or that you do not care whole-
heartedly for the result, or that you doubt either your power or your
premises. But …
Oliver Wendell Holmes1
The doctrine of freedom of expression is generally thought to single out a class of “protected acts” which it holds to be immune from restrictions to which other acts are subject. In particular, on any very strong version of the doctrine there will be cases where protected acts are held to be immune from restriction despite the fact that they have as consequences harms which would normally be sufficient to justify the imposition of legal sanctions. It is the existence of such cases which makes freedom of expression a significant doctrine and which makes it appear, from a certain point of view, an irrational one. This feeling of irrationality is vividly portrayed by Justice Holmes in the passage quoted.
To answer this charge of irrationality is the main task of a philosophical defense of freedom of expression. Such an answer requires, first, a clear account of what the class of protected acts is, and then an explanation of the nature and grounds of its privilege. The most common defense of the doctrine of freedom of expression is a consequentialist one. This
This paper is derived from one presented to the Society for Ethical and Legal Philosophy, and I
am grateful to the members of that group, as well as to a number of other audiences willing and
unwilling, for many helpful comments and criticisms.
1 Dissenting in Abrams v. United States, 250 U.S. 616 (1919).