The Paradox of Free Speech and Harm
Dear readers, I have a few articles in the works but nothing is finished and it’s been a short while since I last posted, so here’s a piece I wrote about a year ago about free speech and harm. Until now unreleased, ooh. The writing a bit stuffy - was recovering from a brain injury in my defence.
The Paradox of Free Speech and Harm (Conditioning Vulnerability to Expression)
Speech has the power to shape opinions, influence actions, and impact lives. The power of free speech has often been espoused, perhaps most famously by JS Mill[i]. However, there are instances when speech appears to cause harm, ranging from emotional distress to incitement of physical violence. Such harms are not to be dismissed lightly, as they can have real and lasting consequences on individuals and communities. Speech that directly incites physical violence clearly has extensive harm. Yet there is a grey area over how much harm arises from certain speech which does not directly cite physical violence but does seem to cause emotional harm. I will argue that recent efforts to reduce harm risk causing more harm to both speakers and receivers than they avert.
Many polemics for free speech recently have been dismissive of the idea that speech causes harm. But, as Chemerinsky and Gillman note[ii], concern about harm comes from a place of genuine compassion. Further, it is implausible to say that every claim of distress from speech is feigned for ulterior motives. Whilst faux distress will sometimes be weaponised, there are certainly plenty of cases in which people, particularly from perceived or real marginalised communities, have felt considerable distress on hearing certain positions espoused. Therefore, it is not enough to simply assert that speech cannot cause any substantial harm. Caught between those who emphasise the harm of speech and those who downplay it, we have neglected consideration of how and why speech may cause harm, and the effects of measures to reduce this emotional harm.
Among those who emphasise the emotional harm that can arise from certain speech, a narrative has arisen which claims that harm inevitably arises from certain expression. This harm-narrative is often cited as justification for the suppression of certain speech[iii]. Suppression will largely come in the form of condemnation[iv] and other negative repercussions[v] for those who espouse certain views assessed to cause harm when voiced. Some have criticised the suppression of certain speech, talking of ‘witch-hunts’[vi] and of the importance of free speech for our outcomes[vii]. Fewer have considered the harm-narrative on its own terms – that harm does often arise when certain things are said.
Haidt and Lukianoff and Haidt argue that the recent encouragement of, for example, emotional reasoning, has rendered people less robust to potentially provocative speech.[viii] They cite social psychology to consider how the harm-narrative may increase the emotional distress people experience when controversial content is voiced. It offers not just a solution, using techniques from Cognitive Behavioural Therapy (CBT), but also an explanation of why many experience considerable emotional harm upon hearing certain speech.
Whilst it may account for why the emotional harm is so considerable, I wonder how much it explains the entirety of the harm altogether. The harm-narrative as I understand it suggests that harm sometimes inevitably arises from speech. A dismissive response from free speech advocates could note that speech does not inherently contain harm. In a more philosophical perspective, Rio Popper, then an Oxford University student, defined expression as a combination of what one says and how one says it, or content and medium.[ix] Regardless of what I say, clearly neither what I say nor how I say it in and of themselves necessitate harm.
Why then does emotional harm arise – as it undoubtedly does – when certain things are said? Expression does not generally exist in a vacuum. The speech we are concerned with is that which has at least one listener. If the listener hears certain content with the prior belief or attitude that the expression of that content can harm the listener, then they may experience emotional harm. This then proposes a mechanism of how emotional harm arises from certain speech.
Thus far it seems like a lot of words to motivate what many take to be common sense. But it is important to make explicit, because now we can ask what motivates the prior beliefs or attitudes that render a listener exposed to emotional harm. It is the perpetuation and proliferation of the harm-narrative. Not only does the harm-narrative worsen the debilitating emotional response that some have to certain speech – it is a necessary condition for it.
For some, this will seem far-fetched. Offense is not a recent phenomenon – people have experienced offense for as long as we are aware. Of course, offense is not purely a result of the harm-narrative. But emotional harm may well be. It is only through a prior belief or attitude that speech in and of itself can render one in a comprehensively emotionally worse state that one is exposed to that possibility.
This accounts for emotional harm experienced in response to the expression of certain, presumably provocative, content. It does not account for the possibility that the listener experiences emotional harm from knowledge they gain upon listening to certain speech. Perhaps it is the knowledge that the speaker holds an offensive opinion which renders the listener feeling far less safe or welcome. Such increases in knowledge could understandably incur emotional harm to the listener. However, this does not in any way negate the way in which the harm-narrative renders the speech harmful. The harm-narrative, once adopted by the listener, renders them vulnerable to certain speech even when there is no corresponding increase in knowledge.[x]
That seems to be a particular situation, but it is arguably the situation we face today. For example, most people are already aware of the fact that certain figures hold gender critical views. When already-known gender critical figure A voices those views, the listener does not learn any more about how prolific those views are. As such, any emotional harm arising when figure A voices those views is purely a result of the combination of their speech and the prior belief or attitude that this speech inevitably causes harm. That belief or attitude is that of the harm-narrative. Belief in the harm-narrative is a necessary condition which leaves the listener in emotional distress when they hear offensive speech when they already knew the information in that speech.
XXX [I have no idea who I had in mind when I wrote XXX] made an argument from the empirical theories of social psychology that the harm-narrative may increase the emotional harm experienced from certain speech [maybe I meant Haidt]. Here, there is an additional reasoned argument that the harm-narrative is a necessary condition for emotional harm arising from speech the listener finds offensive that fails to inform the listener of anything they did not already know.
As such, we have both empirical and logical grounds for believing that the perpetuating of the harm-narrative results in increased emotional harm of those who identify as members of marginalised groups. In an admirable bid to protect people, the harm-narrative itself has, in cruel irony, rendered them more vulnerable.
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Moreover, it is not clear that the harm from the harm-narrative is limited to those who identify as members of marginalised groups.
In Popper’s piece on free expression, she argues that the punishment of free expression is ultimately the punishment of the speaker’s ‘internal world’ – i.e., a punishment of the speaker. By Popper’s definition, as earlier, expression is defined by the combination of content and medium. When we punish free expression, we don’t do it on the basis of how it was relayed. Censorship’s emphasis is on substance. However, one’s beliefs are a part of one’s ‘internal world’. I.e., if I punish you saying that you don’t like chocolate ice cream (since that’s weird), then I’m really punishing you for your dislike of chocolate ice cream – but your dislike of chocolate ice cream is just part of you!
Popper is concerned by what gets punished when we punish free expression. That is important. I’m primarily concerned with what or who gets harmed. Popper’s argument is a philosophical one, but it has real world implications. If we accept that people’s beliefs are ‘internal aspects’, then suppressing their free expression is to suppress their expression of their authentic selves. The holder of beliefs that, if voiced, face suppression, either self-censors or expresses themselves anyway. Either way, they are unable to freely express their authentic selves, if we take ‘freely’ to mean ‘without punishment’. The inability to express one’s authentic self without punishment has been widely accepted to inflict emotional harm.[xi] As such, this suppression of speech results in emotional harm for the holders of potentially provocative opinions.
Moreover, which expressions will incur punishment is not always clear. Therefore, people live in uncertainty of what punishment they may incur. Sometimes uncertainty over negative outcomes incurs greater emotional harm than certain negative outcomes.[xii] Therefore, the greatest emotional harm is likely to be experienced not by those with the most grotesque views, but by those with apparently unorthodox views that are in many ways sympathetic to perceived marginalised groups. This is shockingly likely to be the majority, with most Britons reporting they self-censor.[xiii] This is the ‘climate of fear’. The suppression of speech perversely risks inflicting more emotional harm to those with unorthodox but compassionate beliefs.[xiv]
There is an argument that one can punish certain expression in given situations without violating anyone’s dignity. Elford finds that we can only punish dependent on consequences, such as when speech results in emotional harm. Popper has an answer to this, that we might punish when there are consequences, but it’s still the speaker that we punish. As such, all the negative emotional effects on the speaker from suppressing free expression remain relevant. Even under Elford’s view, we would still have to attempt to assess the harm caused from certain expression to punish it. If we deem that harm results from some speech and attempt to assess this harm, we implicitly accept and promote the harm-narrative in the process. As shown earlier, this has harmful repercussions even to those who identify as members of marginalised groups. Much like in quantum mechanics, where observation seemingly changes the result, assessment of emotional harm is not an emotionally neutral act. Therefore, the idea that we can only punish free speech when it seems to cause distress fails to avoid the emotional harm that happens when we punish speech.
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The harm-narrative that some expression inevitably causes harm and the suppressing of arguably harmful expression both cause harm. The first causes harm to potentially marginalised groups by increasing the likelihood consuming content will incur emotional distress. The next causes harm to the holders of marginalised beliefs by instilling fear and the harm of the inability to express their authentic selves. As such, the movement that seeks to limit free expression on the basis that the limiting of free expression will reduce harm most likely increases the amount of emotional harm experienced.
Therefore, individuals concerned with harm should not perpetuate the harm-narrative and support such policies. Further, an authority concerned with minimising harm should either abstain from restrictions on free expression, or even discourage the narrative that free expression causes harm.[xv]
[i] On Liberty, Mill 1859
[ii] Free Speech on Campus, Chemerinsky & Gillman 2017
[iii] E.g., John Stuart Mill’s Harm Principle and Free Speech: Expanding the Notion of Harm, Bell 2021
[iv] See https://www.psychologytoday.com/us/blog/positively-media/202103/cancel-culture-accountability-or-bullying
[v] https://www.spiked-online.com/2020/07/14/25-times-cancel-culture-was-real/
[vi] https://www.telegraph.co.uk/news/0/cancel-culture-modern-day-witch-trials/
[vii] https://nymag.com/intelligencer/2020/06/case-for-liberalism-tom-cotton-new-york-times-james-bennet.html
[viii] https://www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/
[ix] What Gets Punished When We Punish Expression, Popper 2021
[x] When speech does increase the listener’s knowledge, the listener may experience emotional harm. However, there is a separate debate here, since there are also arguments for and against the benefits of gaining unpalatable knowledge.
[xi] Folk theorem (not game theory!)
[xii] Folk theorem; Uncertainty Makes Me Emotional: Uncertainty as an Elicitor and Modulator of Emotional States, Morriss, Tupitsa, Dodd & Hirsch 2022
[xiii] https://yougov.co.uk/topics/politics/articles-reports/2021/12/22/cancel-culture-what-views-are-britons-afraid-expre
[xiv] https://www.forbes.com/sites/jamiehailstone/2021/12/20/cancel-culture-fears-stopping-young-people-speaking-out-on-climate-crisis-study-finds/
[xv] I need to clarify what I mean by ‘discouragement’. Since I believe that suppressing or punishing expression incurs significant harm, I am extremely reluctant to advocate any discouragement of expression that includes suppression or punishment. However, discouragement which simply provides counter arguments and/or guidelines would avoid incurring harm by suppression or punishment.