Comment on Shiffrin's Thinker-Based Approach to Freedom of Speech
Scanlon, T. M., Constitutional Commentary
A constitutionally protected right of freedom of speech is a limit on government policies that is deemed necessary to protect certain important values. Even among those who believe in freedom of speech, and believe that any defensible constitution has to include a protection of this kind, there is considerable lack of clarity and disagreement about exactly how the relevant values are best understood. So one central task of a theory of freedom of speech is to offer a clear account of what these values are and why we should care about them. The judicial decisions that make up the constitutional jurisprudence of a country in which freedom of speech is recognized as a constitutional right will involve a series of partial answers to these questions. One thing that a theory of free speech might try to do is to knit these partial answers into a coherent whole. As Shiffrin makes clear at the outset of her excellent essay, this is not her task. Her aim, rather, is the purely normative one of describing the values that really do make speech important and freedom of speech an essential ingredient in any defensible constitutional order.
Any account of the values supporting freedom of speech needs to have a certain degree of abstraction. The right to speak becomes controversial when there is disagreement about the merits of the speech in question, and a defense of the right to speak needs to appeal to some value that both sides of this disagreement have reason to recognize. For example, people may disagree about the merits of speech advocating (or opposing) tax cuts, or speech advocating (or opposing) anarchism. A policy defending the freedom to speak of various partisans to these debates needs to appeal to a value that abstracts from these disagreements, such as the value of being able to participate in politics by expressing one's opinion about important questions of public policy. To take an example from an adjacent area: people disagree about the merits of various forms of religion and religious practice. A policy of tolerance is therefore naturally defended by appealing to the more abstract value of living according to one's religious beliefs, whatever these may be.
Shiffrin's defense of freedom of speech carries this method of abstraction to a high level. The value that the right of freedom of speech protects is in her view the value of "the free development and operation of [one's] mind." (1) The many different things that count as speech and are protected by freedom of speech "serve the fundamental function of allowing an agent to transmit (or attempt to transmit so far as possible) the contents of her mind to others and to externalize her mental contents in order to attempt to identify, evaluate, and endorse or react given contents as authentically one's own." (2) Transmission and externalization of this kind is essential, Shiffrin argues, to the development and exercise of one's mental abilities.
She lists a number of other more specific interests that we have as thinkers, for which speech is essential. These include:
a. A capacity for practical and theoretical thought: developing her mental capacities to be receptive of, appreciative of, and responsive to reasons and facts in practical and theoretical thought, i.e. to be aware of and appropriately responsive to the true, the false, and the unknown.
b. Apprehending the true: believing and understanding true things about herself, including the contents of her mind, and the features and forces of the environment from which she emerges and in which she interacts.
c. Exercising the imagination: in addition, rational agents have interests in understanding and intellectually exploring non-existent possible and impossible environments....
d. Becoming a distinctive individual: developing a personality and engaging more broadly in a mental life that, while responsive to reasons and facts, is distinguished from others' personalities by individuating features, emotions, reactions, traits, thoughts, and experiences that contribute to a distinctive perspective that embodies and represents each individual's separateness as a person. …