In defending freedom of expression, Mill assumes that it is no longer necessary to restate its political function in protecting citizens from the operations of corrupt and tyrannical governments. Instead he is particularly concerned to establish a case for the freedom to express unpopular views which go against the prevailing public opinion. A person's right to express his opinion does not depend on the extent to which his view is shared by others. "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." (p. 79)
Superficially, Mill's arguments for freedom of expression are simple enough. He himself summarizes them as follows: "We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still." (p. 79) But if one examines the way in which these arguments are elaborated, one soon discovers that Mill's summary of them is in fact oversimplified. One of his central arguments is based on the notion of human fallibility. But this argument is ambiguous, and depending on how it is interpreted, it in fact establishes two very different connections between human fallibility and the allowance of freedom of expression, and corresponding to these two connections, there are two different notions of the value of the search for truth.
Sometimes Mill points to human fallibility as a reason for not suppressing an opinion because we may be mistaken, and in suppressing a purportedly false opinion, we may in fact be suppressing what in future will be shown to be true. Thus he points to the mistakes, arising out of human fallibility, which led to the deaths of Socrates and Jesus and to the persecution of the early Christians. Those who engage in mistaken acts of suppression are often sincere men who believe in the rightness [124/125] of what they are doing. Indeed in the Roman emperor Marcus Aurelius we had a man who was intellectually and morally far superior to the average person. Yet if such a man could make mistakes, how much more likely are ordinary persons to do so. Sincerity and nobleness of purpose, intellectual and moral wisdom do not rule out the fallibility which is shared by all human beings. Even when our beliefs are generally and widely accepted by the rest of our society, and indeed by the whole age, this is no guarantee that we are not mistaken. We are not justified in accepting the optimism of Dr Johnson that persecution will not suppress the truth for ever, that the truth will always survive the ordeal of persecution, and has the intrinsic ability of ultimately triumphing over error. This is "idle sentimentality": "History teams with instances of truth put down by persecution." (p. 89) The absence of freedom of expression also creates an atmosphere in which men fear to pursue their opinions to unorthodox and socially unacceptable conclusions. Instead they will trim their beliefs to suit the existing orthodoxies, and in such an atmosphere of intellectual timidity and conformity, no new true beliefs will emerge to challenge prevailing views.
Let's call this the Avoidance of Mistake Argument. Its central claim is that human fallibility makes necessary freedom of expression if we are to avoid suppressing true beliefs. This first argument should be distinguished from what may be called the Assumption of Infallibility Argument.
The latter is put forward by Mill when he considers an objection to the Avoidance of Mistake Argument. According to this objection, from the fact that we may act mistakenly in suppressing a true opinion, it does not follow that we should not act at all. If we genuinely, and on good grounds, believe that an opinion is false and that its expression will have pernicious consequences, we should not be deterred from suppressing it by the mere possibility that our views may be mistaken. At this point Mill replies: "Complete liberty of contradicting and disproving our opinion is the very condition which justifies us in assuming its truth for purposes of action: and on no other terms can a being with human faculties have any rational assurance of being right." (p. 81) The reply tries to undercut the claim that we could have [125/126] good grounds for believing that our opinion is true in the absence of freedom of discussion. Unlike the earlier argument for freedom of expression which stresses the dangers of making mistakes, this new argument emphasizes the lack of rational assurance of fallible men in the truth of their beliefs. According to the Assumption of Infallibility Argument, the opinion we desire to suppress may very well be false, as we claim it to be, but, as fallible beings, we can have no rational assurance that it is false unless there is freedom to discuss it. In the absence of freedom of discussion we are not entitled to believe that it is false, even though it may in fact be false. To claim that we know it to be false is to make an implicit claim to our own infallibility. So unless there is freedom of expression fallible men can have no rational grounds for believing that their opinions are true. Mill is no longer referring to the benefits of holding true beliefs. He has now shifted his attention to the rationality of our beliefs, and freedom of expression is defended as an indispensable condition for the holding of rational beliefs.
The Assumption of Infallibility Argument is closely related to a third argument of Mills that even if an opinion is false, it would be wrong to stifle it. Let's call this the Necessity of Error Argument. It maintains that in the absence of freedom of discussion one will not appreciate the full meaning of the opinion. The true belief will be held as a "dead dogma". By this Mill means that the person who holds such a belief will not be properly influenced by it. He will not appreciate to any considerable degree what he is committed to when he accepts the opinion. At the same time his acceptance of this belief will prevent him from accepting other beliefs that appear to oppose it, but may in fact be no more than complementary to it, or perhaps a refinement of it, or even completely unrelated to it. The absence of freedom of discussion also prevents us from knowing "the grounds of the opinion". Men will hold on to a belief quite independently of the balance of arguments and evidence for and against it. Their belief will therefore be held in a rigid and dogmatic way, and they are unable to adapt it to changing circumstances. If, for example, there are strong arguments limiting the area of application of a rule, they will not appreciate them. They will apply the rule [126/127] indiscriminately, overlooking what may well be proper exceptions to it. They may even insist on applying it in situations which the rule was not meant to cover. Mill goes on to say that the effort to know the grounds of an opinion cultivates the intellect and judgement. On the other hand, the absence of freedom of discussion leads to the atrophy of these faculties.
Once again it is not simply the having of true opinions that Mill values. Rather, it is the way in which the truth is held. He wants people to hold their opinions in a rational manner, with a knowledge of the significance of these opinions and the grounds for them, and with a willingness to change or modify them in the light of new arguments and evidence. Referring to those who hold a true opinion without knowing the grounds of the opinion, he says that the true opinion "abides as a prejudice, a belief independent of, and proof against, argument" (p. 96). There is therefore for Mill a distinction between having true opinions and what he calls "knowing the truth". Whereas the Avoidance of Mistake Argument stresses the value of having true opinions, both the Assumption of Infallibility and the Necessity of Error Arguments emphasize the importance of trying to know the truth.
The value of having true beliefs lies in the good consequences produced by the beliefs. True beliefs promote progress and improve the welfare of men. But a man's views on morality, politics, and religion are intimately linked to his personality. The beliefs he has, and the way he holds them, help to define the sort of person he is. The mere fact that he has true beliefs is not enough. We do not think much of a person who simply holds on to true beliefs but has no clear understanding of them or of the reasons for holding them. In assessing the type of person he is, or whether his life is worthy of imitation, we will look at his personal qualities, and these include the way he holds his views about what is and what is not desirable, the influences these views have on his daily life as displayed in the manner he applies them to particular situations and the way he reacts to changing circumstances. For Mill, it really is important not only what beliefs men hold, but also what manner of men they are that hold them.
Now true beliefs may be acquired in all sorts of ways -- [127/128] through revelation, indoctrination, manipulation of the sources of information and the media of communication, as well as through freedom of discussion. If a person's ultimate value is that all men should have true beliefs, no matter how these beliefs are generated, then he will cherish freedom of discussion only in so far as it promotes such true beliefs. Freedom of discussion then becomes simply a means to the promotion of true beliefs, and if it is not the most efficient and economical way of attaining this goal, there appears to be no reason why other means should not be adopted. In certain actual, and in many imaginable situations, it is, for example, possible that the cultivation of specific true beliefs in as many people as possible is best achieved through indoctrination. In these cases one who values freedom of discussion only as a means to the establishment and propagation of true beliefs will be prepared to ditch freedom. Mill in fact believes that true opinions are most likely to emerge through freedom of discussion. But some critics of his have pointed out that if he is wrong on this, he is committed to abandoning his liberal belief in freedom of discussion. Alternatively, it is maintained that it is only because Mill is sceptical about the truth of, for example, competing religious doctrines that he preaches religious toleration. All these objections overlook the importance that Mill attaches to trying to know the truth instead of merely having true opinions. Mill's critics tend to concentrate on his first argument for freedom of expression and to ignore his other arguments. (Stephen E. Norris, for excample, seems to treat all of Mill's arguments as versions of the Avoidance of Mistake Argument).
Consider the case of religious toleration. One argument for it is the optimistic belief that though persecution can change men's outward behaviour, it cannot affect their views about what is true or false. Thus Locke argued that
Neither the profession of any articles of faith, nor the conformity to any outward form of worship ... can be available to the salvation of souls unless the truth of one, and the acceptableness of the other unto God, be thoroughly believed by those that so profess and practice. But penalties are no way capable to produce such belief. It is only light and evidence that can work a change in men's opinions; which light can in no manner proceed from corporal sufferings or any other outward penalties. [Locke, p. 19; the Letter was published in 1689]
In a similar vein, Mill's disciple, John Morley, wrote: [128/129]
Here is the radical fallacy of those who argue that people must use promises and threats in order to encourage opinions, thoughts, and feelings which they think good, and to prevent other which they think bad. Promises and threats can influence acts. Opinions and thoughts on morals, politics and the rest, after they have once grown in a man's mind, can no more be influenced by promises and threats than can my knowledge that snow is white or that ice is cold. You may impose penalties on me by statute for saying that snow is white, or acting as if I thought ice cold, and the penalties may affect my conduct. They will not, because they cannot, modify my beliefs in the matter by a single iota. One result of intolerance is to make hypocrites. On this, as on the rest of the grounds which vindicate the doctrine of liberty, a man who thought himself infallible either in particular or in general, from the Pope of Rome down to the editor of the daily newspaper, might still be inclined to abstain from any form of compulsion. [Morley, pp. 247-48]
But against this type of argument, even long before the awareness that modern techniques of propaganda and subtle manipulation of the social environment can radically change the beliefs of men, Pascal had already argued that the "sickness" of religious disbelief can be cured if a man acted as if he believed in God. In the end he can work his way into genuine belief. (Whether genuine belief generated in this way will win him a place in Heaven, as Pascal thought, is more debatable, and I am inclined to think that a good God would, when confronted with such a man in the afterlife, tell him bluntly, "Go to Hell.") I doubt that we can now be as confident as Locke was that only "light and evidence" can change men's opinions, and consequently the argument from the ineffectiveness of persecution and intolerance in changing men's beliefs rests on dubious foundations.
Hence if freedom of discussion is supported solely by Mill's Avoidance of Mistake Argument, it will cut no ice with those who believe that they have the truth from some infallible source, and who further believe that it is easier for them to share the truth with others if freedom is not accorded to opposing false beliefs. Although he tries to forge a strong link between freedom of discussion and the true beliefs which in turn lead to the progress that men value, it is clear that as far as Mill himself is concerned, the ultimate defence of freedom of discussion lies elsewhere -- in his Assumption of Infallibility and Necessity of Error Arguments. Though he thinks that in the end there would be a consensus of opinion [129/130] on many currently contentious matters, he believes that this state of affairs is desirable only if it results from freedom of discussion. He does not regard peace and tranquillity, to which the absence of conflicting and contentious views gives rise, as intrinsically desirable, irrespective of how they were attained. In this he differs from so many of his critics who share the views of Fitzjames Stephen that if all men could be made, without too great cost, to have true opinions, this would be "the greatest of all intellectual blessings" (Liberty, p. 86). Whereas Stephen merely wanted men to have true beliefs, Mill wishes them to know the truth.
Mill admires rational and intellectually active men, and freedom of discussion is necessary for raising "even persons of the most ordinary intellect to something of the dignity of thinking beings" (p. 95). For him thinking beings are those who seek to know the truth, and who are not afraid of pursuing a view to whatever conclusions it leads. They do not hold a view dogmatically. They adopt a certain attitude towards evidence and arguments which commits them to accept freedom of discussion so that all those who disagree with them will be allowed to state opposing views. A free atmosphere is necessary if there are to be thinking men, and thinking men would want freedom both for themselves and for others.
It is sometimes maintained that Mill cherishes freedom of discussion only for the élite. Certainly he recognizes that the intellectual powers and abilities of men differ greatly, and he believes that the intellectual élite of society has a special contribution to make. In an early essay he quotes with approval the remark, "Some are wise, and some are otherwise" ("Pledges," p. 449), and in the essay On Liberty he sees the élite as pioneers who will break through the barriers of custom to new and better ways of life. But freedom is not for them alone, and indeed he goes so far as to say explicitly that the chief benefit of freedom of discussion lies in what it can do for average human beings:
Not that it is solely, or chiefly, to form great thinkers, that freedom of thinking is required. On the contrary, it is as much and even more to enable average human beings to attain the mental stature which they are capable of. There have been, and may again, be, great individual thinkers [130/131] in a general atmosphere of mental slavery. But there never has been, nor ever will be, in that atmosphere an intellectually active people. [p. 94]
Mill, then, has a number of different arguments for freedom of expression. But he believes that these arguments are connected . Rational and thinking men, who seek to know the truth, are more likely to arrive at true opinions than those who wish to suppress false opinions. So, though in a particular case false opinions may prevail over true ones if freedom of discussion is permitted, in the long run many more true doctrines will be discovered in a free atmosphere, which breeds thinking men, than in an atmosphere where there are restrictions on freedom of expression.
Mill intends his powerful case for freedom of expression to apply to the important areas of "morals, religion, politics, social relations, and the business of life" (p. 96). However, there are flaws in the details of his arguments.
He considers an objection to his Assumption of Infallibility Argument, that fallible beings cannot have a rational assurance that their opinions are true unless there is freedom of discussion. The objection tries to get round the Argument by avoiding the making of truth claims about an opinion. There are certain beliefs so useful to the well-being of society that it is the duty of government to protect these beliefs and to suppress the expression of opinions contrary to them. Such suppression would not, it is argued, be based on the assumption of infallibility since it rests on the claim that the belief is useful, and not on the claim that it is true. Mill makes two points against this objection. First, he says that the usefulness of an opinion is itself something about which men may dispute. We therefore can have no rational assurance that our view concerning the utility of an opinion is correct unless there is freedom of discussion, or unless we assume our own infallibility. Second, Mill maintains that no false belief is really useful, and so it is not possible to avoid making truth claims after all. To assess the usefulness of an opinion we have first to know whether or not the opinion is true.
Mill's first point does not in itself satisfactorily answer the objection. Consider the two statements p and q:
p = Members of race R are all incurably stupid. q = The expression of statements about the stupidity of the [131/132] members of any race will, in the present situation of racial tension and antagonism, lead to race riots.
In other words, q is a second-order statement about statements like p. Now if q is true, it provides a reason for suppressing the expression of p in certain contexts. Mill's point can be met so long as we remain free to dispute q. But q can be, freely disputed even if p is suppressed. However, Mill's second point tries to rebut this. By claiming that the truth of an opinion is part of its utility, he in fact tries to undermine the two-level analysis above. Mill would say that in order to find out whether q is true, one has to know whether or not p is true. One can't have a rational assurance that q is true unless one is free to discuss the truth or falsity of p. So one has to allow freedom to discuss both p and q. But surely Mill goes too far here. For it is possible, and perhaps even likely, that in the sort of situation under consideration, whether or not p is true, dangerous consequences will result from its expression.
Mill himself recognizes the dangers of free speech in certain situations. He says that "even 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." (p. 114.) Thus one may prevent the opinion that corn-dealers are starvers of the poor from being delivered orally to an excited crowd assembled in front of the corndealer's house. But the same opinion should be permitted to be expressed in the press. Again he believes that the instigation to tyrannicide "in a specific case, may be a proper subject of punishment, but only if an overt act has followed, and at least a probable connection can be established between the act and the instigation" (p. 78).
Although Mill uses the same term "instigation", his two cases are different in some important respects. In the tyrannicide example, it would appear that the resultant harm, the killing of a particular person, must be intended by the speaker or the writer. But in the corn-dealer case, the "positive instigation" is not of this type: the speaker may neither intend nor even welcome any harm to the corn-dealers, and yet, in the given circumstances, his speech would be a causally relevant factor in bringing about the harm. He need not be urging the excited [132/133] crowd to commit any "mischievous act", but none the less harmful acts are very likely to result. The most that one could infer from Mill's description is that the speaker was carelessly indifferent to the fate of the corn-dealer, or that he was unusually stupid in not foreseeing that harm would result from the expression of his view in the given situation.
Because the notion of "instigation" in the corn-dealer case is a causal and not an intentional concept, it appears that Mill is not confining restrictions to freedom of expression merely to contexts where someone urges others, with the probability of success, to commit specific harmful acts. But there is now a real danger that the restrictions of freedom of expression that are permitted by Mill's remarks in the corn-dealer example may be far greater than he supposes, or would be prepared to accept. As Watkins has argued,
But suppose that the publication of a certain book may reasonably be expected to lead, after a time-lag, to much more serious damage than would have been caused by the speech outside the corn-dealer's house: would not society be justified, on Mill's principles, in suppressing such a book? Or consider the series of scientific papers which made possible the construction of an atom-bomb: should not they have been suppressed? [pp. 173-74]
The way out for Mill is to insist, as his corn-dealer case suggests, on the immediacy of the harm done by the expression of an opinion before that opinion can be legitimately suppressed. This rules out an appeal to harm that may arise in the long run, and thereby confines restrictions on freedom of expression to a relatively small class. But what considerations favour this proposal?
First, there are the familiar uncertainties about making long-term predictions. Again, where no immediate damage is likely, we have the opportunity of bringing into play the good effects that discussion generally has: dangerous opinions can be argued against and countered with other views. Even if there is every reason to believe that serious long-term harm will result from the expression of an opinion, our very awareness of this, and our continued attempts to argue against the opinion or to avert the harm, may be enough. This at least would be the belief, or sometimes perhaps merely the hope, of a Millian liberal.
In certain cases his hope will indeed prove to be too [133/134] optimistic. But the alternative policy of allowing the state the right to suppress free speech, whenever it can put up a reasonable case that such expression will cause long-term damage to society, is highly undesirable. Even when the state allows its decisions to be openly challenged, this will not be enough to remove the grave threat to the atmosphere of free inquiry inherent in the conferring of such a right. In the nature of the case, new and bold, as well as old and unpopular, ideas are likely to look dangerous to most people, and the state will have no difficulty in putting up a reasonable case, acceptable to the majority, that serious harm will be caused by the open espousal of such ideas.
Part of the apparent reasonableness of the state's case will depend on the fact that the harmful ideas may threaten a change in the existing legal rights of persons, and thus be subversive of the current social order.
Furthermore, a man's conception of what constitutes harm tends to be partly determined by the prevailing framework of accepted ideas. And this raises a fundamental difference between, on the one hand, the claim that immediate harm win result from the expression of an opinion, and on the other hand the claim that serious long-term harm will be caused. In the short run if free speech leads to a violation of accepted legal rights of persons, this will constitute the damage done. But the violation in the distant future of current legal rights need not be regarded as harm viewed from the perspective of a changed legal and social order. The legal rights of persons change with time, and some of these rights may cease to exist, and hence may no longer be there to be violated. So there is a conceptual problem in predicting that certain types of damage would result in the long run from the expression of particular opinions. Consider Mill's own example of someone expressing the view that private property is theft. If this is delivered before an excited crowd which immediately proceeds to steal the goods of wealthy people, then these acts of theft would be the harm resulting from the expression of the opinion. But if, on the other hand, it is claimed that no such immediate effects are forthcoming, but that far more serious cases of theft will result in the long run from the constant utterances of this opinion, [134/135] one may object that if the run is indeed a very long one, private property may by then have been abolished by constitutional changes. No "stealing" is possible without the institution of private property, and hence no harm of this type can be inflicted. One has, however, to be careful not to exaggerate this point. It applies to certain types of damage or harm that are closely bound up with the violation of a particular system of values embodied in a definite social or legal order. It does not apply equally to harm that consists in the violation of the physical integrity of the person, for here the concept of harm seems to be tied to something more general and fundamental than variable social orders. Unless human beings become very different from what they now are, physical assault will cause harm in any social system, and hence speech that leads men to assault other persons physically will be harmful in the same sense, whether or not the harm is caused in the immediate or in the distant future. (For an instructive discussion of the connection between the concept of harm and men's general wish to survive, see H. L. A. Hart, Concept, pp. 186-89; cf. my discussion in Chapter 4).
Again where the harmful effect follows immediately from the expression of a certain view, the expression is often so closely connected with the act as to be properly considered part of the act. Any description of what happened would be incomplete unless it incorporated the expression. This is particularly so in the case of verbal expressions urging an immediate and specific harmful act, and delivered to a live audience face to face. (Compare Emerson, pp. 328-36 et passim; this is a detailed and valuable discussion of the "the legal foundations for an effective system of freedom of expression" in the United States of America.)
Finally, the further away the harmful consequences are from the time of the expression, the more likely it is that there are other intervening causal factors which contribute to the harm. The imputation of responsibility cannot then be fairly laid on the agent's expression. The intervention of other factors lets him off the hook.
Though the likelihood of immediate harm is a necessary condition of justifiable legal intervention, it is not always a sufficient condition. There are other relevant factors. It matters, for example, whether the agent was responsible for the resultant harm, or whether he was a victim of a deliberate and organized disruption of public order by an intolerant section of his audience who wished to prevent his unpopular view from being heard; this raises "the problem of hostile audience"; for illuminating discussions, see Emerson, pp. 336-42, and Marshall, pp. 160-67.
Mill himself pays little attention to the circumstances [135/136] under which freedom of expression may justifiably be restricted (see McCloskey; Monro; Feinberg, "Limits"). The corn-dealer example is mentioned only in passing, and the incitement to tyrannicide is discussed in a footnote. He is much more concerned with putting forward the theoretical grounds for freedom of expression in general. His liberal theory is incomplete unless it is supplemented with a more detailed examination of the types of restrictions which it would allow. But such a detailed examination should follow from a clearer appreciation of the nature of the general theory. For Mill the chief justification of freedom of expression is that it enables even persons of ordinary, intellect to strive to know the truth and thereby to attain "the dignity of thinking beings." (One may compare the exposition of Mill's ideas here with two recent important defences of freedom of expression by T. Scanlon and D. A. J. Richards; a very different view is presented by Herbert Marcuse.) This ideal of what a worthwhile human life should be is, he feels, within the reach of ordinary persons in many areas of their lives. It is of course the same ideal of individuality that he is here appealing to. The ideal underlies and unifies both his case for freedom of expression and that for freedom of action.
The scope of Mill's defence of freedom of expression does not cover the dissemination of information, whether true or false, about a person's private life which has no hearing on the scientific, moral, political, religious, and social issues with which he is concerned. Although Mill regards freedom of expression as belonging to "that part of the conduct of an individual which concerns other people", he makes a strong plea for "the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered" (p. 78). While this does not amount to a demand for absolute freedom of expression, it carries with it implications hostile to attempts to suppress any doctrine simply on the ground that it is unacceptable to a group of people, or to the majority, or even to "all mankind minus one". For example, the suppression of views simply because they are regarded as blasphemous and obscene would not be justified. If we regard blasphemous and obscene remarks as expressions of opinion, then they must come under the protection accorded freedom of speech. In the absence of any clear harm, there is no case for their suppression.
The case against using the law to suppress blasphemy is particularly clear. In its essence blasphemy involves the [136/137] expression of an opinion that others find outrageous, shocking, or offensive because it treats, or is regarded as treating, disrespectfully or contemptuously what others regard as sacred. in the end there is no particular reason why blasphemy should be confined to religious matters. Certainly a staunchly
religious man is likely to be offended by certain remarks directed at, or ridiculing, his religion. But what a person finds shocking depends on what he deeply cherishes, and religion is not the only subject about which people feel strongly. Indeed a recent commentator suggests: "Religion and sexuality have lost much of their old power to shock. But the capacity for being shocked has not evaporated; it has simply attached itself, for an energetic minority at any rate, to a new subject-matter" (Quinton, p. 427). According to him this new subject-matter is race relations, and he refers in particular to Mr Enoch Powell's views on coloured immigrants. However, the persistent censorship of obscene and pornographic books, and the recent prosecution of Gay News and its editor for blasphemous libel (The Times, 13 July 1977), help to remind us that religion and sexuality have lost their power to shock only as far as many liberals and radicals are concerned, but that there is still a sizeable group for whom religious and sexual matters are still the sources of deep offence.
So we are confronted with a situation in which many liberals and radicals are deeply angered and shocked by racist remarks and want to use the law to suppress them, whereas many politically conservative people argue against such suppression by invoking the general right to free speech. On the other hand, these same liberals and radicals are against the censorship of obscenity and blasphemy. If there is an inconsistency in their attitudes, this inconsistency is equally evident in the views of those who firmly believe that blasphemy should be a crime, while at the same time preaching the right of people to express racist views. Both sides seem to have been carried away by the strength of their respective feelings, and to have abandoned all firm principles.
Maurice Cranston has argued that, "only a society with no values at all -- only a society with no sense of the sacred -- could fail to be sensitive to blasphemy; an unshockable society would be unbearably barbarous." ("Censure," p. 17) Although Cranston [137/138] thinks that the penalty imposed in the Gay News case was too severe, he does not wish to remove blasphemy as a crime. But the argument he gives is unacceptable. A society can be "sensitive to blasphemy" in the sense of being shocked by it, without at the same time wishing to invoke the criminal law to suppress what it finds shocking. Such a society will resist the step from being shocked to suppression simply because it places a high value on the freedom of individuals to express their opinions. Moreover, different persons are shocked by different things, and who can doubt that what shocked Mrs Mary Whitehouse did not in fact shock many others? So the case for retaining the crime of blasphemy is reduced either to the claim that the majority in a society has the right not to be shocked, or else to the view that whatever shocks any sizeable group of persons may be suppressed.
The former view might not support the decision in Gay News because it is certainly arguable that the poem the magazine printed would not have shocked a majority in the society. But even if Mrs Whitehouse were in the majority, it would still be wrong to punish the magazine and its editor. Such punishment will confer on the majority a right not to have its cherished institutions and views ridiculed or strongly criticized. It will thereby entrench orthodoxies. On another occasion, Cranston himself has drawn attention to what he called a new kind of "secular blasphemy", and I quote his admirable remarks:
One of the reasons given for the suppression of Pasternak's novel Dr. Zhivago was that the author wrote disrespectfully of the achievements of the Bolshevik Revolution. There have been cases in Greece of writers being imprisoned for speaking disrespectfully of the military regime. The offence in such cases is that of writing in an impudent or insolent fashion about what is thought to be sacred and to require veneration. The offence may not be call "blasphemy", but that is what it comes down to; and the more secular institutions are allowed to claim divinity, the more widespread this offence is likely to become in future. [Rights, p. 44]
But if a majority of Christians is allowed to suppress what it finds shocking, so too would a majority of communists, fascists, conservatives, racists, puritans, etc.
The other basis for making blasphemy a crime -- that it shocks a sizeable group of people -- fares no better. No doubt [138/139] it has the advantage of removing a certain partiality towards the majority, of which the existing law is guilty. As a leading article in The Times pointed out, the common law offence of blasphemy is confined solely to attacks on Christianity (The Times, 13 July 1977). Other religious groups are rightly aggrieved by this obvious unfairness. But the law will still be unfair if we extend the crime of blasphemy to cover the religions of substantial minorities. For if one is justified in making blasphemy a crime simply because substantial minorities are shocked by blasphemous remarks, then why is it that the law should only protect religious groups? Substantial political, social, racial, or sexual minorities may be shocked as much as religious minorities by hostile comments. If all of them have their sensitivities protected by the law, then there is little that anyone can say which will not run foul of the law.
A curious feature of the recent discussion of blasphemy is a failure not only to see this general point, but also a more specific failure to appreciate the fact that if there is to be a crime of blasphemy at all, then basic requirements of fairness demand that atheists, agnostics, and humanists should receive the protection of the law against blasphemy just as much as Christians, or any other religious group with a substantial number of adherents. The Times argued for the placing of Muslims, Hindus, Sikhs, Buddhists, and Jews on the same footing as Christians, but it failed to raise its voice for the large numbers of non-believers who too can be shocked or offended by the vilification and attacks on them and their views (The Times, 13 July 1977). Atheists are regularly subjected to attacks by religious groups not only for specific "immoralities", but also for their general incapacity for acting morally because of the alleged dependence of morality on religion.
There can therefore be no justification of a law against blasphemy which is grounded simply in the claim of people to be protected from what shocks them. We know that once we accept freedom of speech, shocking opinions of one type or another will be expressed. Of course there are occasions on which the manner of expression of such opinions is likely to cause definite harm to others, or a breach of the peace. On such occasions restrictions are justifiable, not to suppress the opinions as such, but to regulate their manner of expression. [139/140] Thus a group of white racists who march through a predominantly coloured neighbourhood carrying racist placards and shouting racist slogans, may be stopped. By the same token, we may prevent a person from shouting blasphemous remarks outside a church where people are gathered for a service. This kind of regulation of free speech is acceptable, but it requires no distinctive crime of blasphemy for its implementation. However, it is wrong to punish blasphemous remarks in a book or journal which no religious person is required to read. Similarly, racist remarks in the same media should be permitted unless one can distinguish between the two types of cases by showing that racist statements cause definite harm as distinguished from strong offence. In other words, one may be justified in suppressing racist remarks on the ground that they cause racial bashings or unlawful racial discrimination in, for example, jobs and housing. But one is never justified in suppressing such remarks simply because they offend a significant group of people, or even the overwhelming majority in a society.
So far I have discussed the right to make blasphemous remarks as part of the general right to free speech. But it may now be argued that blasphemous remarks cannot really be brought under the protection of free speech. It is obvious that for the argument to get off the ground, the offence of blasphemy must be construed much more narrowly that I have construed it. It may be suggested that what is to be censored are blasphemous remarks which are not merely shocking, but which also fail to have any weighty or serious "redeeming social value". The same argument has been used against obscene books. It is one thing to express an opinion, no matter how disgusting and offensive it may be to others; but it is quite another thing to make profane and obscene remarks in a manner that is not at all essential to the expression of any opinion. Such remarks are gratuitous, and gratuitously shocking, and that, it is argued, is the justification for suppressing their public utterance.
This kind of defence of censorship has been well developed in the fight against "hard-core" pornography, and I shall now turn my attention to this area. A typical hard-core pornographic book will have the following features: [140/141] (i) its content is quite explicitly and crudely about sexual matters; (ii) its author has the intention of sexually arousing or stimulating his readers; and (iii) it has no intrinsic literary or other scholarly merit, though there is disagreement about whether or not it is useful in, for example, sexual therapy. I do not of course imply that a pornographic book has no entertainment value. But it has no value over and above this, in the way that a work of art or a sociological investigation is valuable. A pornographic book should therefore be distinguished from those literary works which are "obscene" in the sense of containing offensive passages about sexual matters.
Now it is part of the conventional wisdom that such works of art, and other works of scholarly interest, should be accepted, whereas pornographic books should be severely censored. The development of the obscenity laws in the English-speaking world may be viewed as an attempt to give increasingly rational articulation to the conventional wisdom. Thus a book must be judged as a whole and not in isolated passages, and the testimonies of literary experts and other scholars are relevant. However, there is an old tradition of thought which believes that works of art are likely to have undesirable or harmful effects, and this has permeated to some extent into the general social consciousness. So it is no part of the conventional wisdom that once a book has passed literary muster, it should be allowed an unrestricted circulation. The literary merit of a book must be weighed against the possibly harmful effects the book may have. But in this balancing of values, art and the interests of scholarship at least get independent recognition.
On the other hand, the conventional wisdom is very intolerant of pornography. Since a pornographic book has no literary or other scholarly merit, it needs very little to tip the scales in favour of censorship. This, I think, in part explains why the arguments for censorship have often been so feeble. For if censorship violates no important social value, then it is unnecessary to put up a strong case in its favour. Cries of moral indignation, and vague allusions to the corruption and destruction of the social fabric are sufficient.
Those who are against the censorship of pornographic [141/142] books have usually fallen back on one of the following three types of argument.
(1) it is conceded that the reading of pornographic books will have some harmful effects, but it is maintained that censorship will only increase the harmful effects by whetting men's appetite for forbidden fruits. In non-totalitarian countries it is impossible to wipe out the trade in pornographic books. But to drive pornography underground, without being able to suppress it sufficiently, will only give it a dangerous glamour.
(2) The reading of pornographic books has neither good nor bad effects, but is itself a pleasurable experience. The pleasure it gives outweighs the offence to others.
(3) The reading of pornographic books has positively good effects in, for example, reducing sexual crimes. It does not drive men to commit sexual crimes, but is instead a substitute for such crimes. It is a safety-valve that lets off excess sexual energy which would otherwise be channelled into harmful conduct.
But these arguments, by confining the issue entirely to the effects of reading pornography, tend to lose sight of a fundamental principle. For it must not be assumed that the fact that pornography lacks the value of scholarly works, and the fact that it offends a significant number of people, in any way constitute a prima-facie case against its toleration. We need not justify our activities to others just because they regard them as valueless and are offended by them. What is at stake here is the place of toleration in social life.
On one view, toleration of different beliefs and practices is justified because the truth is thereby promoted or enriched. Hence if pornographic books are to be tolerated, they must, like scholarly works, contribute in some way to the enlargement of our knowledge. If they fail to do so, then the only reason for tolerating them is that the social cost of intolerance is greater than that of tolerance.
But to defend toleration solely on this basis is to be content with Mill's Avoidance of Mistake Argument and to ignore the rest of his case for freedom of expression. There is also a different basis for toleration, and it is here that the example of religious toleration is instructive. For whatever may have [142/143] been the case at other times and in other places, the present proliferation of religious and quasi-religious sects makes it less likely that each new sect brings with it some fresh vision of the spiritual life. In his classic Letter Concerning Toleration, Locke argued passionately for religious toleration in spite of his conviction of the truth of Christianity. Similarly, many advocates of religious toleration today would also claim that as far as they are concerned, their religion contains all the relevant truth, and other religions, in so far as they put forward incompatible views, are false, and perhaps even perverse and degrading. If their acknowledgement of the value of religious toleration does not rest on social and political expediency, then it seems likely that they are committed to something like Mill's ideal of individuality, or some similar ideal of man as an autonomous or self-determining being, pursuing his own good as he sees it, and controlled by his own standards of how he ought to behave. They will recognize that in the absence of harm to others, they are not entitled to dictate to a person how he should express himself to a willing audience.
The case for tolerating activities that offend us does not therefore depend on whether we think that these activities are valuable, over and above the satisfaction of people's obvious desire freely to engage in them. Religious toleration is widely accepted today, but a principled commitment to religious toleration carries with it the toleration of all activities which merely, offend us. It is for this reason that the real enemies of "our way of life" and some of our most cherished values are not the blasphemers and the producers and consumers of pornography, but rather all those who refuse to tolerate what they find merely offensive, disgusting, and of no value.
Text last modified 22 April 2001; reformatted 25 March 2012