John Stuart Mill, the Harm Principle, and the Utility of Unfettered Free Speech
Known as one of the founding fathers of classical liberalism and neoclassical utilitarianism, John Stuart Mill penned the legendary essay, On Liberty, in which he insists, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others” (Mill, On Liberty). Put simply, one can move a fist in any direction except for the purposes of hitting a face other than one’s own, but how does this philosophy apply to free speech? The United States inarguably has the most extensive freedoms and allowances for speech of any country in the world, and Mill’s philosophies on the need for unfettered speech and expression provide the bedrock on which our First Amendment jurisprudence is still interpreted today. However, many argue that this libertarian interpretation of the First Amendment holds little overall utility in comparison to the benefits of legally prohibiting hateful and offensive speech. After all, why should controversial and inflammatory philosophers, scientists, or even comedians be offered a public platform for their ideas and rhetoric? When hateful, bigoted words can feel like a knife in one’s side, why shouldn’t speech equate to violence, and why should the government not punish hate speech accordingly? Isn’t true liberalism progressed with the rejection of such hatred? The answer to these questions can be discovered through Mill’s method by which to gauge the regulation of harm, known as the Harm Principle, which consists of two steps. If no harm to others manifests from a person’s actions, any such actions find protection under the Harm Principle. However, if harm does result from an action, then society must gauge the overall utility of this harm and choose to act accordingly. In applying Mill’s Harm Principle to modern and pertinent questions regarding free speech, one discovers that Mill’s libertarian ideals regarding speech and expression, while at times controversial, uncomfortable, and even hurtful, are of vital importance and hold invaluable utility in the pursuit of a functioning and civil society. The quest for truth and rational thought, whether in scientific discovery or in religious and philosophical debate, requires the potential to cause offense, for no intellectual discussion of substance lacks a healthy amount of controversy, and many truths which modern society now accepts without question were at one time or another considered harmful, hateful, or even illegal. While words have an undeniable capacity to wound, degrade, and cause harm, taking offense must be separated from true harm as speech is the only mechanism by which human beings are able to resolve conflict without resorting to physical violence. And while listening to hateful speech can at times be excruciating to bear, progressive ideals and true liberalism only benefit from more opportunities for speech and debate, not less, and the libertarian approach to free speech allows for the marketplace of ideas in which civil liberties have been fought for and won throughout history. In short, the harm caused by over-reaching restrictions on speech far outweighs the harm caused by allowing an unconstrained market of ideas and expressions.
In an ever-evolving modern American society replete with trigger warnings, safe spaces, and rise of violent protests directed towards controversial philosophers, scientists, and comedians, as well as a growing support to legally ban such provocateurs access to the public, Mill’s vision of liberal and libertarian expression as described in On Liberty proves more pertinent than ever. When addressing the silencing of opinion, Mill states, “the peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error” (Mill, On Liberty). Mill argues, and I emphatically agree, that sheltering society from a diversity of thought deprives individuals of not only ideas which may hold some element of truth, but also inhibits the capacity for one to think critically, to engage in debate, and to reason. At one point, even the most brilliant minds in the world, from Galileo to Voltaire, were considered of the minority opinion and imprisoned for their contributions to scientific and philosophical discovery. While I would never suggest that the latest college provocateur may be the next Galileo, silencing speech and free expression carries with it the risk of suppressing those minority opinions which could positively contribute to intellectual, moral, and scientific progress. As Mill said, “persons of genius, it is true, are, and are always likely to be, a small minority; but in order to have them, it is necessary to preserve the soil in which they grow” (Mill, On Liberty).
Mill argues that thoughts possessed by minorities hold strong societal utility, for “every man who says frankly and fully what he thinks is so far doing a public service” (Mill, On Liberty), but what about those voices which so obviously hold no moral worth, intellectual value, or scientific insight such as racial supremacists, homophobes, or even those who believe the Earth is flat? How could Mill’s Harm Principle possibly determine that the silencing of these voices would bring about anything but more peace and social prosperity, and shouldn’t such hateful and idiotic speech be considered tantamount to violence? Though the harm inflicted by hateful words cannot be cast aside or belittled, Mill makes a vital distinction between true harm and hurt feelings. True harm caused by words, according to Mill, usually occurs against one’s will and cannot be avoided. Offense, on the other hand, can be ignored by choosing to disengage with that which offends you. By this logic, offense does not count as harm under the Harm Principle, and the utility of Mill’s distinction cannot be ignored in the pursuit of preserving peace within a diverse society. For as hurtful as words may be, the truth remains that no alternative to speech exists when settling disagreements other than violence. Speech is the only instrument by which society can debate and engage in adversarial discourse, and while some words can metaphorically cut like a knife, no reasonable person would choose a bloodied physical battle over a battle of words and intellect. In applying the Harm Principle to equating speech with violence, one realizes that comparing actual violence to hurtful or offensive words only invites the ability to respond to said speech with violent action, and the utility of allowing speech, especially that speech with which the majority disagrees, far outweighs the unintended consequences of silencing inflammatory voices. For, as Mill states, “if all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind” (Mill, On Liberty).
However, upon watching nazis rally through American streets, their speech being carefully protected under the watch of police forces, one may rightfully wonder how anyone could possibly see liberal progress in protecting such disgusting ideologies. While at times Mill’s libertarian case for speech appears antithetical to progressive values, the allowance of controversial, hateful, and even disgusting speech paves the way for true liberalism to flourish. For while hearing hateful expressions of bigotry are enough to infuriate any reasonable person, the rights to free speech that allow bigots to spew hate are the same rights that allow those championing for civil rights to march in the streets against them. For example, though I frown on bakeries refusing for religious reasons to bake a wedding cake for gay couples, the same First Amendment rights that grant them the right to do so also grant a liberal female photographer the right to refuse photographing a “Support the Unborn” rally, or a black man to refuse service to a member of the KKK. As Mill said, “over himself, over his own body and mind, the individual is sovereign” (Mill, On Liberty), and the beauty and beast of liberty lies in the fact that it applies to everyone in a free country, even (and especially) those we despise.
But the question still begs to be answered, where should the Harm Principle limit speech? The answer to this question has seen many evolutions in First Amendment jurisprudence (especially over the past century), but the modern standard by which the American judicial system evaluates incitements to violence set forth by the 1969 Supreme Court case Brandenburg v. Ohio provides the most fair and comprehensive implementation of the Harm Principle. Ever since Justice Oliver Wendell Holmes’ landmark dissent in Abrams v. United States in 1919 where he stated, “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Abrams v. US, 1919), First Amendment jurisprudence has rapidly progressed towards Mill’s libertarian approach to free speech, finally resulting in the Brandenburg v. Ohio rule of imminent lawless action. This rule provides a sharper definition of clear and present danger by prohibiting speech that is, “directed at inciting or producing imminent lawless action”, and also through evaluating the likelihood of said speech to produce violent activity. Under the Harm Principle, the overall utility of punishing speech which would result in violence or that directly incites violent action dominates the utility of allowing such abuses and harassments.
While Mill’s absolutist approach to free speech inarguably comes with unavoidable consequences, enduring obnoxious and repulsive rhetoric in a free society proves a far lesser harm under Mill’s Harm Principle than the denial of opportunity to say what one thinks, to condemn views one opposes, and to engage in diplomatic and controversial discussion. Scientific and moral truths are only discoverable in a societal climate which protects the ability to put forth into the public sphere that which is undesirable, offensive, or problematic. Speech, while at times brutal to hear, is a far superior mechanism to resolving conflicts than through physical violence, and it is the ability to engage in diplomatic discussion that has paved the way for the progression of civil rights and an expansion of liberal ideology. A society which chooses to allow that which is offensive and controversial only opens the door to expand their capacity for knowledge, to refine their search for truth, and to fully embrace the liberal concepts of freedom. After all, as Mill astutely observed, “to refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is an assumption of infallibility” (Mill, On Liberty). That is to say, no human being is without error, and only through the ability to fail and succeed within a free market of expression is there a glimmer of chance to transcend our mortal shortcomings and uncover vital philosophical, scientific, and moral truths.