Abstract
The Introduction explains the book’s purpose—describing an ecological theory of free expression, focused on an institutional environment capable of respecting and furthering expressive activity and realizing the goods associated with it. It also outlines the natural-law approach that frames the book’s arguments. It goes on to preview those arguments—focused on possessory rights, the range of putative and actual injuries that might be thought to trigger restraints on expressive activity, the risks associated with empowering political authorities to restrain expression, the role of autonomy and human flourishing in grounding protections for expressive freedom, and the various instrumental functions served by expressive freedom—before considering issues related to governmental land and workers and private associations, as well as a range of topical case studies.
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Notes
- 1.
On this theoretical approach, the “New Classical Natural Law” (NCNL ) theory, see generally John Finnis , Natural Law and Natural Rights (1980); John Finnis, Fundamentals of Ethics (1983); 1 Germain Grisez , The Way of the Lord Jesus: Christian Moral Principles (1983); Germain Grisez & Russell Shaw, Beyond the New Morality: The Responsibilities of Freedom (3d ed. 1988); John M. Finnis et al., Nuclear Deterrence, Morality, and Realism (1987); Germain Grisez & Joseph M. Boyle , Jr., Life and Death with Liberty and Justice: A Contribution to the Euthanasia Debate (1979); John Finnis, Moral Absolutes: Tradition, Revision, and Truth (1991); 2 Germain G. Grisez, The Way of the Lord Jesus: Living a Christian Life (1994); John Finnis, Aquinas : Moral, Political, and Legal Theory (1998); Robert P. George , In Defense of Natural Law (2001); 3 Germain Grisez, The Way of the Lord Jesus: Difficult Moral Questions (1997); Germain Grisez, Joseph M. Boyle, and John Finnis, Practical Principles, Moral Truth, and Ultimate Ends, 32 Am. J. Juris 99 (1987); John M. Finnis, Germain G. Grisez, and Joseph M. Boyle, “‘Direct’ and ‘Indirect’”: A Reply to Critics of Our Action Theory, 65 Thomist 1 (2001); Mark C. Murphy , Natural Law and Practical Rationality (1999); Mark C. Murphy, Natural Law in Jurisprudence and Politics (2006); Alfonso Gómez-Lobo, Morality and the Human Goods: An Introduction to Natural Law Ethics (2002); Timothy Chappell , Understanding Human Goods: A Theory of Ethics (1995). Like me, not everyone whose work is listed here would be viewed as a paid-up member of the NCNL fraternity; my preferred version of the theory is certainly in some ways idiosyncratic.
- 2.
Cf. Jason Brennan , Controversial Ethics as a Foundation for Controversial Political Theory, 7 Stud. Emergent Order 299 (2014) (objecting to the theory’s commitment to the incommensurability of basic aspects of well-being ).
- 3.
See, e.g., Gary Chartier , Public Practice, Private Law: An Essay on Love, Marriage, and the State 115–19 (2016). Sophie-Grace (formerly Timothy) Chappell and I may be the only theorists who’ve worked in something like the NCNL tradition to acknowledge sensory pleasure as a basic aspect of well-being . See Chappell, supra note 1, at 38–43. Chappell’s views now tend more toward a sort of particularism than they did a couple of decades ago, but, even if her own views rather than the merits of the position she elaborated in this book were in question, the refinement of her position wouldn’t affect the merit of her arguments on this point.
- 4.
See, e.g., Chappell , supra note 1, at 37–45 (1995); Murphy, Rationality, supra note 1, at 96–138; Gómez-Lobo, supra note 1, at 6–25; Grisez & Shaw, supra note 1, at 77–88; Grisez, Principles, supra note 1, at 121–25; Finnis , Law, supra note 1, at 59–99.
- 5.
Cf. Gary Chartier , The Logic of Commitment 34–41, 47–55 (2018).
- 6.
See, e.g., Grisez & Shaw, supra note 1, at 117–53; Grisez, Principles, supra note 1, at 205–28; Finnis , Law, supra note 1, at 100–33, 304; Finnis, Ethics, supra note 1, at 75–76; Murphy, Rationality, supra note 1, at 198–212; Gómez-Lobo, supra note 1, at 42–44. The particular delineations of these principles, and the labels I assign them, are mine.
- 7.
See Chartier , Commitment, supra note 4, at 8–55.
- 8.
For simplicity’s sake, I refer throughout this book to preventing, ending, or remedying injuries . But I do not intend, by speaking of preventing injuries, to suggest that freewheeling interference with people’s bodies or possessions to keep them from injuring others is appropriate. I do not believe preemptive violence is morally appropriate. I have in mind preventive activity undertaken in response to actual threats, signaled verbally or physically, that pose immediate risks of serious legally cognizable injury that cannot be averted without forcible intervention.
- 9.
On disputes regarding freedom of expression in the United States, see, e.g., Stephen M. Feldman , Free Expression and Democracy in America: A History (2008); Ronald K. L. Collins & Sam Chaltain, We Must Not Be Afraid to Be Free: Stories of Free Expression in America (2011); Howl on Trial: The Battle for Free Expression (Bill Morgan & Nancy J. Peters eds., 2006); Geoffrey R. Stone, Perilous Times: Free Speech in Wartime: From the Sedition Act of 1798 to the War on Terrorism (2005); First Amendment Stories (Richard W. Garnett & Andrew Koppelman eds., 2012). For a comparative review of the relevant legal issues, see Eric Barendt, Freedom of Speech (2d ed. 2005).
- 10.
I agree completely with Charles Fried that legal protections for freedom of expression should be seen as constraints on what the legal system can do, on what (in our current context) it’s appropriate for the state to do; see Charles M. Fried, Saying What the Law Is: The Constitution in the Supreme Court 79–80 (2005). Legal protections for free expression should not be understood to offer a roving mandate for judges to police the expression-impacting behavior of nonviolent non-state actors. But the legal protection for freedom of expression finds intelligibility and justification in the context of a broad set of moral concerns. And these concerns are clearly relevant to the choices of non-state actors, even though these actors should not be compelled by force of law to respect the expressive freedoms they have strong moral reasons to recognize.
- 11.
On the protection of nonverbal expressive acts in American constitutional law, see, e.g., Mark V. Tushnet , Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (2017).
- 12.
When someone’s conduct is interfered with, perhaps forcibly, because she has engaged in expressive conduct that constitutes a threat, it is not the expressive conduct per se that is being interfered with or sanctioned. Rather, the purpose of the interference is to prevent or end the injurious activity threatened by means of the conduct. If I say, “Your money or your life!,” and someone shoots me as a result, I’m not being harmed because of the content of my words but because those words signal behavior that may, and indeed likely should, be stopped.
- 13.
Cf. Peter Railton , Scientific Objectivity and the Aims of Belief, in Believing and Accepting 179, 191–202 (Pascal Engel ed., 2000). A conversation with Annette Bryson led me to this essay.
- 14.
Id. at 195.
- 15.
Thanks to Kevin Hill for help on this point.
- 16.
While free action is, in the most general sense, genuinely individual action that occurs without restraint or necessitation, there are multiple dimensions of freedom. Political freedom, or freedom from aggression , is the most fundamental: It’s the freedom to act without being restrained by actual or threatened aggression against one’s body or justly acquired possessions . Most discussions of the freedom of expression are concerned with freedom from aggression. Social freedom, by contrast, is the freedom to act without being restrained by actual or threatened nonviolent social pressure. It is never possible to be free entirely from social pressure—there are obviously consequences for the choices one makes as one interacts with others. But some social interactions and social environments offer much more room for individuality to be developed and expressed than others. In this book, I am concerned with freedom of expression as a variety of social as well as political freedom. See Gary Chartier , Anarchy and Legal Order: Law and Politics for a Stateless Society 4 n.9 (2013). (I am not much concerned here with such other varieties of freedom as physical or metaphysical freedom , though I suspect it is easier to make one sort of case for freedom of expression if agents are metaphysically free.)
- 17.
While I cast my defense of expressive freedom in, roughly, the terms of the NCNL theory, some NCNL theorists favor moral paternalism of various sorts, or regard it as in principle defensible. Germain Grisez tends to oppose moral paternalism, see Grisez & Boyle , supra note 1, at 449–58, and Finnis implicitly acknowledges the general appropriateness of Mill ’s harm principle, see Finnis, Aquinas , supra note 1, at 228. Robert P. George is clear that various pragmatic considerations might rule out morals legislation in particular cases, see Robert P. George, Making Men Moral: Civil Liberties and Public Morality viii–x (1993), but believes that such legislation is in principle appropriate. My goal here is not to respond to arguments for moral paternalism framed in terms of the NCNL theory in detail as far as these arguments apply to expressive freedom. I simply note, briefly, that I differ from other theorists in the broad NCNL family at several key points, and our differences regarding these points help to explain why I don’t join some NCNL theorists in accepting paternalistic morals legislation. (i) I deny that the state exercises legitimate authority. (ii) I deny that retributive punishment is morally permissible. (iii) I affirm possessory rights much more robust than the ones other NCNL theorists are inclined to endorse. (iv) I believe that only a narrow range of injuries should be legally cognizable .
- 18.
See, e.g., Leslie Green , The Authority of the State (1990); Joseph Raz , The Morality of Freedom 70–105 (1986); A. John Simmons , Political Philosophy 15–66 (2008); M. B. E. Smith , Is There a Prima Facie Obligation to Obey the Law?, 82 Yale L. J. 950 (1972); Stephen R. L. Clark , Civil Peace and Sacred Order 46–92 (1989). Cf. Gary Chartier , In Defence of the Anarchist, 29 Oxford J. Legal Stud. 115 (2009).
- 19.
See, e.g., Anarchy, State, and Public Choice (Edward P. Stringham ed., 2005); Anthony de Jasay , The State 35–52 (1998); Anthony de Jasay, Against Politics: On Government, Anarchy, and Order (1997); Michael Taylor , Community, Anarchy, and Liberty (1982); Michael Taylor, The Possibility of Cooperation (1987); Peter T. Leeson , Anarchy Unbound: Why Self-Governance Works Better Than You Think (2014).
- 20.
See, e.g., Franz Oppenheimer , The State (1997); Stephen R. L. Clark , The Political Animal: Biology, Ethics, and Politics 33–35 (1999); Jasay , Politics, supra note 9, at 16–21; Kevin A. Carson , The Iron Fist Behind the Invisible Hand: Corporate Capitalism As a State-Guaranteed System of Privilege (2002).
- 21.
Anarchism’s radicalism might prompt resistance to the thought that describing it as linked with liberalism. Interestingly, anarcho-syndicalist Noam Chomsky characterizes it in just this way: cf. Anthony Arnove, Forward, in Noam Chomsky, The Essential Chomsky at vii (Anthony Arnove ed., 2008); Matthew Robare, American Anarchist, The American Conservative, Nov. 22, 2013, available at http://www.theamericanconservative.com/articles/american-anarchist. While Chomsky sees anarchism as a descendant of classical liberalism, he views classical liberalism as having been distorted into a rationalization for an unjust status quo; on his view, anarchism adds socialism to the classical liberal repertoire of views. Rudolf Rocker had earlier made the case that anarchism should be tied to the liberal tradition; see Rudolf Rocker, Pioneers of American Freedom: Origin of Liberal and Radical Thought in America (1949). But cf. Markets Not Capitalism: Individualist Anarchism against Bosses, Inequality, Corporate Power, and Structural Poverty (Gary Chartier & Charles W. Johnson eds., 2011).
- 22.
For other such accounts of liberalism, see, e.g., Joseph Raz , The Morality of Freedom (1986); Douglas J. Den Uyl & Douglas B. Rasmussen , The Perfectionist Turn: From Metanorms to Metaethics (2016).
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Chartier, G. (2018). Protecting Expression. In: An Ecological Theory of Free Expression. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-75271-6_1
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