Freedom of speech as the second pillar of freethought

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Excerpt from The Secular Outlook: In Defense of Moral and Political Secularism, by Paul Cliteur (Wiley-Blackwell, 2010). Reprinted with permission from the author.

From Chapter 3: Freethought II: Freedom of Expression

Freedom of expression “is applicable not only to ‘information’ or ‘ideas’ that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.” (European Court of Human Rights, Judgment in the Handyside case, 1976)[1]

So far I have elaborated on the first pillar of freethought: religion is not only a source of good things but of some unfortunate developments as well. I referred to verses in the Bible that constitute a denial of freedom of worship and the penalties for sexual misconduct prescribed by the Qur’an. These are still influential in the modern world, although less so in Western countries than in the Middle East. We have also seen that there seems to be a revival of religious feeling, or perhaps we should say of religious “self-confidence.” Religious groups revolt against the secular state and secular morals.[2] That revolt sometimes manifests itself through democratic channels: proposals to revitalize blasphemy laws or otherwise curb freedom of speech. But there are violent manifestations of the new religious revival as well. The most extreme manifestation is religious terrorism: the use of violence to intimidate the state and the people or to force the secular state to accept religious rules and values as its basis. Contemporary societies are confronted by a new figure, the religious terrorist, who operates in a way that is remarkably similar to what is shown to us in the biblical story of Phinehas.

What should the reaction of open or liberal societies be to this assault on the principles on which they are based? Should they compromise on free speech and secular values? Or should they reassert the significance of those values? These are some of the pertinent questions we have to answer. In Chapter 3 I want to deal with freedom of speech as the second pillar of freethought – a freedom that has become the focal point of vehement discussions in the past decades, in particular as a result of the terrorist threat. The Danish cartoons affair, the publication of films and plays critical of elements of one of the world religions, the murder of the iconoclastic Dutch filmmaker Theo van Gogh in 2004 – these occurrences have all contributed to a sometimes vehement dispute on the meaning of free speech.[3] In Chapter 3 I want to evaluate the meaning of free speech against the backdrop of this new discussion about how to deal with terrorists who explicitly target this fundamental value of liberal democracies.

The two pillars of freethought (religious criticism and freedom of speech) are not necessarily connected. One and the same person can subscribe to one pillar and deny the other. It is possible that someone is convinced that religions are a blight and an illusion but nevertheless has no high expectations of free speech as a purifying factor. It is also possible that someone holds religion in high regard and at the same time is committed to free speech as a fundamental right. But both positions individually are not those of the freethinker. Characteristic of freethought is a peculiar combination of criticism of religion and trust in freedom of expression to emancipate mankind from one of the evils that besets it.[4]

Let us try to inquire into the reasons for this predilection for freedom of expression. And are these reasons convincing? Is it warranted to believe that free speech can deliver us from the evil sides of religion, or can at least be a step in the right direction? How important is free speech? And for what?

Mill on Liberty

Perhaps it is good to start with a widespread misunderstanding about freethought and freethinkers. Freethinkers do not necessarily have to proclaim free speech as something absolute. Almost everyone – freethinkers included – can imagine circumstances under which it seems justified to impose restraints on free speech. Even John Stuart Mill (1806–1873), who in 1859 presented the most radical vindication of free speech that had ever appeared in the tradition of Western political thought with his book On Liberty,[5] acknowledged certain limitations on the free expression of ideas and opinions. Nobody has the moral right to shout “fire” in an overcrowded hall if there is no actual fire.

Freedom of speech is also subjected to all kinds of legal limitations. Anyone who works for the secret service is not free to publish material relating to state security, as everyone will understand.

Mill wanted to inquire into the nature of civil or social liberty.[6] That is: “the nature and limits of the power which can be legitimately exercised by society over the individual.”[7] His answer is this:

The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is that the sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.[8]

This brings Mill to the introduction of his “harm principle.” “The only purpose for which power can be rightfully exercised over any member of a civilized community, against its will, is to prevent harm to others.”[9] That implies that harm to self is not a legitimate reason for interfering with the freedom of the individual.

Applied to the freedom of expression this means that “opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.”[10] As an example Mill refers to the “corn-dealers.”[11] Anyone who wants to criticize them is allowed to, but there is a limitation. One should not invoke violence against them. Free speech is limited where there is an incitement to “molesting others.”[12] According to Mill, free expression should be curbed if there is – what would later be called – a “clear and present danger” of physical violence.[13]

The example of the corn dealers would now be a bit outdated, but the general problem behind it certainly is not. On the contrary, we might say. In the contemporary world too we are presented – alas – with many examples of people advocating violence against others. A more contemporary example is the “fatwa,” issued by the Iranian spiritual and political leader Ayatollah Khomeini (1902–1989) against the British author Salman Rushdie (1947– ).

Excerpted from The Secular Outlook by Paul Cliteur. Copyright © Paul Cliteur, 2010. All rights reserved.

[1] The Handyside case is quoted in: Janis, Mark W., Kay, Richard S., and Bradley, Anthony W., European Human Rights Law. Texts and Materials, Clarendon Press, Oxford 1995, p. 165.

[2] Juergensmeyer, Mark, Global Rebellion: Religious Challenges to the Secular State, from Christian Militias to Al Qaeda, University of California Press, Berkeley 2008.

[3] See: Warburton, Nigel, Free Speech: A Very Short Introduction, Oxford University Press, Oxford 2009, pp. 42–59; Arthur, John, “Sticks and Stones,” in: Hugh La Folette, ed., Ethics in Practice: An Anthology, second edition, Blackwell Publishers, Oxford 2002 (1997), pp. 364–376; Neu, Jerome, Sticks and Stones: The Philosophy of Insults, Oxford University Press, Oxford 2008; Pannick, David, “A curb on free speech that should offend us all, whatever our religion,” The Times, January 11, 2005; Fish, Stanley, “There’s No Such Thing As Free Speech and It’s a Good Thing, Too,” in: Paul Berman, ed., Debating P.C. The Controversy over Political Correctness on College Campuses, Bantam, New York 1992, 231–245.

[4] “One of the evils.” I am not so naïve as to think that the removal of religious terrorism will create a utopia in this world. I mean what I say: “one of the evils.”

[5] See on this: Reeves, Richard, John Stuart Mill: Victorian Firebrand, Atlantic Books, London 2007, pp. 262–307.

[6] Mill, John Stuart, Three Essays. On Liberty (1859), Representative Government (1861), The Subjection of Women (1869), Oxford University Press, Oxford 1975, p. 5.

[7] Mill, On Liberty, p. 7.

[8] Ibid., p. 15.

[9] Ibid.

[10] Ibid., p. 69.

[11] See on this: Cohen-Almagor, Raphael, The Boundaries of Liberty and Tolerance: The Struggle Against Kahanism in Israel, University Press of Florida, Gainesville 1994, p. 124.

[12] Mill, On Liberty, p. 69.

[13] See: Fraleigh, Douglas M. and Tuman, Joseph S., Freedom of Speech: In the Marketplace of Ideas, St. Martin’s Press, New York 1997, p. 106 ff.

Paul Cliteur is professor of Jurisprudence at Leiden University, the Netherlands. He was also professor of Philosophy at the Delft University, the Netherlands (1995-2002), and visiting professor of Philosophical Anthropology, Ghent University, Belgium (2014). Prof. Cliteur’s research is in the field of ethics, the philosophical foundations of the law, more in particular moral dilemmas around multicultural society, fundamental rights and the relationship between law and worldviews. He is the author of The Secular Outlook (Wiley-Blackwell, Chichester, 2010).

The Secular Outlook: In Defense of Moral and Political Secularism
By Paul Cliteur
Wiley-Blackwell; 1 edition (13 August 2010)
ISBN-10: 1444335219
ISBN-13: 978-1444335217

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