Why Do We Need Human Rights? (38): Different Justifications for Different Types of Free Speech

There are different types of speech, and therefore also different types of free speech. The point I want to make here is that different types of free speech require different justifications. It’s a common error to reject some kinds of free speech because they seem unacceptable from the point of view of justificatory theories that are useful only for other types of free speech.

What does that mean, different types of speech? We can have different goals when we speak: we can try to persuade, to signal our allegiance or identity, to harm, to ostracize, to insult, to express emotions, to promise or to enter into a contract, to state facts, to name something, to order someone, etc.

Each purpose of speech requires a separate justification of free speech, and some purposes may be very hard to justify at all, in which case a limit on freedom of speech may be necessary. However, much talk about limits springs from a logical error. It’s important not to try to use a justification for one type of free speech in order to examine the justification of another type. This may result in the unwarranted conclusion that some type of free speech is not justifiable and that it can therefore be limited, whereas in reality we just use the wrong justification.

Take one type of speech: persuasion. Free persuasion is usually justified on the basis of the marketplace of ideas. In a nutshell: people should be allowed to try to persuade each other freely, because this process of free persuasion will improve the quality of opinions.

Now take another type of speech, namely emotive speech. Examples of emotive speech are “fuck you” (expressing rejection or disgust), “fuck” (expressing disappointment), “shit”, “motherfucker” etc. Such expletives, and emotive speech in general, are often viewed as completely lacking in merit and therefore unworthy of protection. US First Amendment jurisprudence is a case in point. The Supreme Court labels a lot of emotive speech as no-value or low-value speech and has no problem with restrictions of it. (See also here). Speech lacks value, according to the Supreme Court, if it’s no essential part of the exposition of ideas and doesn’t bring us closer to the truth. Any slight benefit it may have is outweighed by the social interest in order and morality.

However, this means focussing on persuasion and the truth seeking purpose of speech, and using the justification of this type of speech in order to reject another type of speech. If, on the other hand, you believe that speech also has an emotional purpose, you would regard expletives as more valuable and more worthy of free speech protection.

The distinction between low or no-value speech on the one hand and high value speech on the other hand, whatever its merits (and those are not obvious), points us towards a further remark regarding the distinction between types of speech and between types of justifications. Those distinctions aren’t clear-cut: even people who express themselves merely because of signaling needs can be justified to do so because of the value of the marketplace of ideas. Although they don’t want to persuade, the fact that they merely express an opinion without arguing for it is valuable in the marketplace of ideas because it can convince others of the lack of real value of their opinions. Likewise, an order may indicate that persuasion has failed, and this in turn may indicate the relative weakness of an opinion.

More posts in this series are here.


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