e Limits of the Public Sphere: e Advocacy of Violence 1

[CRIT 12.2 (2011) 165-188] Critical Horizons (print) ISSN 1440-9917doi:10.1558/crit.v12i2.165 Critical Horizons (online) ISSN 1568-5160

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"e Limits of the Public Sphere: "e Advocacy of Violence1

Sarah SorialFaculty of Law & Faculty of Arts (Philosophy), "e University of Wollongong, NSW, [email protected]

Catriona MackenzieDepartment of Philosophy, Macquarie University, NSW, [email protected]

Abstract: In this paper, we give an account of some of the necessary con-ditions for an e#ectively functioning public sphere, and then explore the question of whether these conditions allow for the expression of ideas and values that are fundamentally incompatible with those of liberalism. We argue that speakers who advocate or glorify violence against democratic institutions fall outside the parameters of what constitutes legitimate pub-lic debate and may in fact undermine the conditions necessary for the $ourishing of free speech and public dialogue more generally.

Keywords: civility; democracy; free speech; political violence; the public sphere.

Freedom of expression, as a philosophical and legal problem, has re-emerged in recent debates about the proliferation of “extreme speech” advocating terrorism and violence.2 Should speech of this nature be “contained” or is such speech a legitimate form of expression in democratic societies commit-

1. "is research has been supported by the Australian Research Council under the Discovery Projects scheme (DP 0879258) “Can saying something make it so? Sedition, speech act theory and the status of freedom of speech in Australia” and by the Legal Research Intersections Center at the University of Wollongong. We would also like to thank Katharine Gelber for her helpful comments on an earlier draft.

2. For example, the Anti-Terrorism Act 2005 and the Terrorism Act 2006 introduced into Aus-tralian and UK law a number of new and controversial o#ences prohibiting the advocacy or glori%cation of known terrorists and terrorist acts. "ese acts reignited debate about the place of extreme speech in liberal democracies.

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166 SARAH SORIAL & CATRIONA MACKENZIE

© Equinox Publishing Ltd 2011.

ted to protecting free speech?3 "e debate with respect to these issues draws heavily on traditional Millian free speech defences, particularly Mill’s argu-ment from truth. "e standard argument is that free speech in democratic societies ought to be protected by a maximum free speech principle; that is, all types of speech ought to be permitted irrespective of content, provided that they do not cause harm. "is means that while speech advocating or glorifying terrorism may be o#ensive, anti-social or even dangerous, our commitment to the discovery of truth requires that we engage in dialogue with those individuals and groups who hold extreme views. In cases where a direct causal link between speech and violence can be established, the speech can be limited. Where no causal relation can be shown, the speech ought to be protected. "e main di!culty, on this account, is where the so-called “line” can be drawn between extreme speech and incitement, and how we determine when that line has been crossed.4

In this paper, we make two claims in response to this argument. First, that it is based on a misinterpretation of Millian free speech justi%cations, particularly the argument from truth. On our interpretation, the argument from truth does not allow for the protection of extreme speech. Second, we argue that it is an error to suppose that free speech is always enhanced by maximum protection. "e status of free speech in a society should not be measured by the degree to which the society tolerates or accepts extreme speech, but by the degree to which the discourse contributes to achieving the collective and individual goods that free speech protection is supposed to achieve. Our argument thus di#ers from the traditional “harm” argu-ment, which maintains that speech should only be regulated in cases where it causes harm, in the form of physical damage to persons or their property.5 "e harm argument requires minimal interference with speech. While we think that minimal interference by governments and other individuals is a necessary condition for the exercise of free speech, it is not su!cient for realizing the social conditions necessary for speech. In this paper, we defend the stronger claim that various forms of state intervention – such as educa-tion and regulation of media ownership – are also necessary for realizing the various social goods for which speech is valued. On the basis of this stronger claim, we argue that there may not be an obligation to engage with speakers who advocate or glorify violence against democratic institutions and that

3. "e term “containment” is taken from John Rawls. See John Rawls, Political Liberalism (New York: Columbia University Press, 1996), 64 n. 19.

4. See, for example, Eric Barendt, “"reats to Freedom of Speech in the United Kingdom”, UNSW Law Journal 28(3) (2005): 895–99.

5. Ronald Dworkin is representative of this view. See Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1977), 198.

THE LIMITS OF THE PUBLIC SPHERE 167


these speech acts may in fact undermine the conditions necessary for the $ourishing of free speech and public dialogue more generally.6

1. !e Problem of “extreme” Speech and the Argument from Truth

Extreme speech is speech that passes beyond the limits of legitimate protest.7 It includes speech that advocates violence as a way of achieving political objectives and hate speech against persons or groups.8 Its legitimacy in a democratic society has been defended on several grounds. First, that extreme speech is often causally remote from the actual occurrence of violence, and does not, therefore, directly cause harm. Second, that because it is often dif-%cult to distinguish between extreme speech and criticism of government, “containing” extreme speech may also have consequences for speakers who legitimately criticize government. "ird, is a version of the argument from democracy: mature democracies should be expected to accommodate the ideas expressed by extreme speech, no matter how o#ensive the views may be, because doing so may have good longterm consequences. For example, it may enable us to change the minds of those speakers who hold extreme views, or it may lead us to change our own practices. We will not address the causal claim that extreme speech ought to be per-mitted because it does not cause harm. "e problems with this standard causal argument have been adequately dealt with in analogous debates about por-nography and hate speech.9 "ese debates have shown that harms resulting

6. Our examination of these issues is con%ned to reasonably functioning liberal democratic soci-eties. It does not apply to cases where liberation %ghters, or other good causes utilize violence to achieve political objectives.

7. James Weinstein and Ivan Hare, “General Introduction: Free Speech, Democracy, and the Suppression of Extreme Speech Past and Present”, in James Weinstein and Ivan Hare (eds), Extreme Speech and Democracy (Oxford: Oxford University Press 2009), 1.

8. Hate speech has been de%ned in various ways. Susan Brison de%nes it as: “speech that vili%es individuals or groups on the basis of such characteristics as race, sex, ethnicity, religion, and sexual orientation and that (1) directly assaults its target(s), (2) creates a hostile environment, or (3) is a kind of group libel” (see, S. Brison, “Relational Autonomy and Freedom of Expres-sion”. In Catriona Mackenzie and Natalie Stoljar (eds), Relational Autonomy: Feminist Perspec-tives on Autonomy, Agency and the Social Self (New York: Oxford University Press, 2000), 281. Katharine Gelber has de%ned it as “an utterance which perpetrates, perpetuates and maintains discrimination. "e e#ects of this discrimination on members of the victim groups include that they are silenced …” (see, K. Gelber, Speaking Back: !e Free Speech Versus Hate Speech Debate (Amsterdam and Philadelphia, PA: John Benjamins Publishing Company, 2002), 69.

9. See, for example, Rae Langton, “Speech acts and unspeakable acts”, Philosophy and Public A"airs 22, no. 4 (1993): 293-330; Rae Langton and Caroline West, “Scorekeeping in a por-nographic language game”, Australasian Journal of Philosophy 77(3) (1999): 300–32; Jennifer



from speech need not be direct or physical in the way envisaged by advocates of the causal argument. Our focus in this paper is on the second and third of these claims, in particular, on how the argument from truth has been used to defend an argument from democracy. Ben Saul and Eric Barendt have argued, for example, that the most e#ective way of dealing with o#ensive, anti-social or dangerous political speech is to allow it into the “marketplace” of ideas in the hope that such opinions will be argued against and eventually rejected.10 "ere is thus a connection here between the argument from truth and the argument from democracy: a policy of permissiveness with respect to extreme speech allows truth, including political truths to emerge. It also ensures that all our beliefs and convictions can be subjected to critical scrutiny and public debate, thus preventing our beliefs from hardening into “dogma”. "is argument has its origins in Mill’s On Liberty. Here, Mill argued that because we can never really be sure that the opinion we are trying to prevent is a false or an erroneous opinion, preventing a person from expressing her views could potentially deprive us of some truth.11 "e methods of inquiry, analysis and evaluation that constitute rational human thought do not guar-antee or generate certainty. "eir use, however, throughout the entire human community over a period of time leads to the overall reduction of error and dogmatism because these methods require us to test and defend our beliefs and what we hold to be truth against criticism. For this reason, the complete liberty of contradicting and disproving our opinions is necessary because it is the only way we can have any rational assurance of being right.12 . "e argument from truth, in its more modern form, appears in the guise of the “more” speech remedy as a way of countering the e#ects of anti-social types of speech. "e idea is that all opinions ought to be allowed in the market-place of ideas, irrespective of how o#ensive they may be, because this gives us the opportunity of subjecting these ideas to criticism, which in turn, enables better arguments to prevail.13

Hornsby, “Disempowered speech”, Philosophical Topics 23(2) (1997): 127–47; Mary Kate McGowan, “On Pornography: MacKinnon, Speech Acts, and ‘False’ Construction”, Hypatia 20(3) (2005): 22–49.

10. See, Ben Saul, “Speaking of Terror: Criminalising Incitement to Violence”, UNSW Law Journal 28(3) (2005): 868–86; Eric Barendt, “"reats to Freedom of Speech in the United Kingdom”, UNSW Law Journal 28(3) (2005): 895–99.

11. See John Stuart Mill, On Liberty London: Penguin Books 1985, 77. Mill also defends free speech on the grounds that it enables individual autonomy, however, our discussion in this paper is only concerned with the argument from truth.

12. Mill, On Liberty, 79. 13. As Justice Brandeis argues: “"e %tting remedy for evil counsels is good ones … No danger

$owing from speech can be deemed clear and present, unless the incidence of the evil appre-hended is so imminent that it may befall before there is opportunity for full discussion. If



Saul and Barendt appeal to a version of this argument to argue against the regulation of extreme speech. Saul, for example, writes: “unless we are able to hear and understand the views of our political adversaries, we cannot hope to turn their minds and convince them that they are wrong, or even to change our own behaviour to accommodate opposing views that turn out to be right”.14 Barendt argues that there may in fact be good reasons for allowing extremist political speech and terrorist propaganda into public debate. First, there may be compelling public interest reasons for protecting extremist political speech, aside from the interests of extremist speakers to express their opinion. He thinks that if we are to deal intelligently with the phenomenon of terrorism, the public may have an interest in accessing the views of the extremists, in knowing who the advocates of terrorism are, and why they hold the views they do.15

Second, there is the additional danger that if extreme speech is not toler-ated, it will be driven underground and we will not have the opportunity of countering it through argument and deliberation. Barendt writes: “speech will no longer act as a safety-valve. "e supporters of terrorism might be deterred from encouraging or glorifying it publicly, but there is no evidence that they will be prevented from counseling it in private or from participat-ing in such activity”.16 Tolerating extreme speech thus reduces the likelihood of people holding %ercely dogmatic views and may prevent others from accepting such views. If people are required to defend their potentially harm-ful views in public, they will be forced to give reasons for holding them. If they are unable to do so, they may %nd it di!cult to convince or persuade others of such views, thereby limiting their impact. "ird, is the argument from democracy: our commitment to delibera-tive processes requires that we engage in dialogue with those individuals and groups who hold extreme views. Liberal democracies are committed to deliberation because it is one of the primary ways that citizens are able to

there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence”. See also David A. Strauss, “Persuasion, Autonomy, and Freedom of Expression”, Columbia Law Review 91 (1991) and Katharine Gelber’s account of “counter speech”, which o#ers a more comprehensive account of what this actually involves and one which is consistent with the position we defend in the second and third sections of this paper. See Gelber, “Reconcep-tualising Counter Speech in Hate Speech Policy; With a Focus on Australia”. In Herz and Molnar (eds), Regulating Hate Speech: Content, Context, and Remedies. New York: Cambridge University Press).

14. Saul, “Speaking of Terror,” 885. 15. E. Barendt, “"reats to Freedom of Speech in the United Kingdom”. UNSW Law Journal

28.3 (2005): 898. 16. Barendt, “"reats to Freedom of Speech”, 898.



participate in formulating the legal norms that will govern them, thereby rendering those norms legitimate. Maleiha Malik proposes a version of this view, arguing that instead of excluding extreme or radical groups from dis-course, we should adopt a policy of engagement and deliberation with them. "e fact that many of these groups have sought to enter public processes of deliberation suggests a genuine commitment on their part to negotiate di#erences and articulate demands: “it seems clear that many of the groups that are characterised as radical or extreme have in fact sought to enter into public processes of deliberation. "ey give interviews to the media or they are involved in other forms of participation in the public sphere”.17 If there is a willingness on the part of extreme groups to engage in deliberative pro-cesses, and if they respect the norms of egalitarian reciprocity, voluntary self-ascription and freedom of exit and association that govern the public sphere, we have an obligation to respond to their demands, irrespective of how incompatible with liberalism their views may be.18

Malik suggests we adopt the concept of “agonistic respect” as a strategy for allowing intractable and irreconcilable di#erences into liberal politics. Ago-nistic respect has three central features: %rst, agonistic democracy emphasizes the importance of a complex notion of political identity, but does not seek rational consensus as a goal. Second, it is able to accommodate “di#erence” in the public sphere rather than relegate it to the private sphere. "ird, it does not limit democratic politics to a territorial state, but recognizes that an individual’s political identity may transcend national boundaries by drawing on transnational allegiances.19 "e %rst two features of the agonistic model open up a space for disagreement rather than enforcing consensus, and use politics as a way of enabling the expression of identity in the public sphere. As such, they provide a more appropriate model for assessing the place of radically “di#erent” groups in liberal politics. According to Malik, the agonistic model also prevents democratic politics from becoming a sphere within which liberalism becomes dogma.20

Agonistic democracy, also represented in the work of Chantel Mou#e, signi%cantly di#ers from traditional models of liberal democracy such as those of John Rawls and Jürgen Habermas. A full examination of the similarities and di#erences between these models is not our concern

17. M. Malik, “Extreme Speech and Liberalism”. In James Weinstein and Ivan Hare (eds), Extreme Speech and Democracy (Oxford: Oxford University Press 2009), 113.

18. Malik, “Extreme Speech and Liberalism”, 113. 19. See Malik, “Extreme Speech and Liberalism”, 110. Malik adopts William E. Connolly’s

account of agonistic democracy in Identity/Di"erence: Democratic Negotiations of Political Paradox (Minneapolis, MN: University Minnesota Press, 2002).

20. Malik, “Extreme Speech and Liberalism”, 117.



here.21 Su!ce it to say that Rawls’ model is based on public reason. It depends on a division between matters that should be the focus of public discussion, deliberation and debate, and private concerns or conceptions of the good, thereby excluding from public debate aspects of private debate, including the deliberations of associations such as Churches or other similar institutions. Habermas’ model of deliberative democracy is also supported by a strong conception of reason, however, because it depends on civil society to generate the content of deliberation, it allows for a wider de%nition of the public sphere. For example, the deliberative model allows for the examination of controversial issues arising from di#erences in ethical, cultural and religious worldviews. Malik concedes that a failure to achieve minimal consensus can result in political chaos. For this reason, he argues that the agonistic model needs to be bolstered by a normative ethical framework, such as that provided by the deliberative model. "ese norms include egalitarian reciprocity, volun-tary self-ascription and freedom of exit and association and they must be endorsed by all persons who seek to participate in public discourse in liberal democracies. "is compromise to the agonistic model represents an attempt to signi%cantly open the public sphere to a diverse range of views and issues whilst at the same time recognizing the need for constraints that function to prevent a total abrogation of liberal values.22

Collectively, the arguments made by Saul, Barendt and Malik have been used to defend a principle of maximum protection for extreme speech. How-ever, we suggest that the argument from democracy, as conceived by Malik, and Mill’s argument from truth, as conceived by Saul and Barendt, cannot be used to support such a conclusion. Mill’s argument is contingent on the existence of a set of social and discursive norms that govern public reason and deliberation. Taking Mill’s argument from truth seriously requires a shift away from the principle of maximum free speech protection, and the elabo-ration of more substantive norms than those stipulated by Malik; norms that partially endorse the Rawlsian account of public reason in the sense that they require minimal standards of reasonableness. In the following section, we give an account of free speech and of the norms that ought to govern

21. See Jurgen Habermas, “Political Liberalism: A Debate with John Rawls”, in Ciaran Cronin and Pablo de Grei# (eds), !e Inclusion of the Other: Studies in Political !eory (Cambridge, MA: MIT Press, 1998) and John Rawls, “Reply to Habermas”, in John Rawls, Political Lib-eralism (New York: Columbia University Press, 1996) for a detailed account of the di#erences between their positions and Malik, “Extreme Speech and Liberalism”, for a summarized ver-sion of these di#erences. See also, Chantel Mou#e, On the Political (London and New York: Routledge, 2005), for a criticism of both these accounts.

22. Malik, “Extreme Speech and Liberalism”, 113.



discourse in the public sphere in order to argue for the following two claims: %rst, the argument from truth can only be used to protect/defend speech that contributes to achieving certain social goods; namely, the discovery of truth and the promotion of rational decision-making. If extreme speech does not contribute to either of these objectives, then it should not be protected or engaged with in the public sphere. Second, that free speech is not always enhanced by maximum protection. We conceive of “truth” as an open-ended process of enquiry, one that requires ongoing dialogue. Such dialogue can take a variety of forms, includ-ing many forms of artistic expression, such as art, literature and %lm. "ese forms of expression often engage in social and political criticism. "ey can also express and re$ect alternative conceptions of the good or envisage dif-ferent social and political arrangements. For these reasons, our account is not restricted to certain types of verbal or written expression, but to any form of expression that makes a contribution to social discourse, broadly conceived.

2. Speech, Truth and the Constraints on Public Discourse

Our argument in this section takes its cue from David Braddon-Mitchell and Caroline West’s analysis of free speech. In their paper “What is Free Speech?” they argue that free speech should be understood as a social condition, rather than as a right, although certain social policies, including legislated rights, may be instrumentally necessary for achieving the social condition of free speech. Although we don’t share their consequentialist framework, we endorse their interpretation of Mill’s conception of free speech. Braddon-Mitchell and West argue that what characterizes a social condi-tion of free speech is that there is a free $ow of information of a kind that enables ideas to be tested “in such a way as to make truth most likely to emerge”.23 "is analysis is Millian, insofar as truth provides the justi%cation for enabling the free $ow of information. But they don’t interpret the Mil-lian argument as the view that the free $ow of information always promotes truth. Rather, on their interpretation, the free $ow of information is justi-%ed, and constitutes the social condition of free speech, only insofar as this free $ow promotes truth. For this reason, they argue, the social condition of free speech is not equivalent to an unregulated marketplace of ideas: state regulation of the market – for example, legislation regulating media owner-

23. D. Braddon-Mitchell and C. West “What is Free Speech?” Journal of Political Philosophy 12(4): 442.



ship – and constraints on various liberties may sometimes be necessary for enabling the kind of free $ow that is most conducive to the emergence of truth. Braddon-Mitchell and West distinguish three di#erent axes of the social condition of free speech, each of which should be thought of as a contin-uum: distribution, communication and consideration. "e liberal defence of free speech has focused mostly on the distribution axis, in particular, on individual freedom to express and distribute dissenting and unpopular ideas without undue interference by the state or by others, where interference may include physical intimidation or violence, censorship or state control of the media, or other legislative or political means to silence dissidents. But enabling widespread distribution requires more than just non-interference with dissenting speech; it imposes substantial obligations on government and other social institutions to create the right kind of social environment for free speech to $ourish, including support for educational and cultural institutions in which novel or dissenting ideas may be developed, as well as provision of the necessary technological infrastructure. Whereas the distribution axis highlights primarily the obligations of the state and other social institutions to enable the widespread distribution of ideas, the communication axis draws attention to the importance for the social condition of free speech of certain capacities and attitudes on the part of speakers and hearers. Free speech requires that speakers are capable of expressing their ideas in ways that are comprehensible to hearers, and will-ing to make the e#ort to do so. It requires that hearers are not just able to understand the words and language that are being spoken but also capable of understanding the ideas being expressed, and willing to make the requisite e#ort. Mill set the bar for understanding very high. An idea that is believed without critical scrutiny, in other words without an understanding of the reasons for or against it, is not properly understood; it remains mere preju-dice or “true dogma”. As Braddon-Mitchell and West explain, for Mill “the bene%ts of free speech – namely, the emergence of truth and the promotion of rational decision-making – only obtain where the reception of speech is suitably critical”.24

Mill emphasized the importance of critical scrutiny for genuine commu-nication because he thought that ideas must be tested against each other in order for truth to emerge. But this conception of communication gives rise to duties on the part of hearers, in particular, an obligation to listen to and consider alternative ideas and to rationally revise one’s own beliefs in light of reasons and evidence. "is is the third axis of the social condition of free

24. Braddon-Mitchell and West, “What is Free Speech?”, 448.



speech, the consideration axis. Free speech is blocked if a community or its members will not consider reasonable alternative viewpoints. It is also blocked if the views of disadvantaged or oppressed minorities are silenced, ridiculed or ignored. We agree with Braddon-Mitchell and West that communication and consideration are of central importance to Mill’s argument from truth. "e argument depends on speakers being suitably rational and willing to engage in dialogue in good faith. Deliberating in good faith means that speakers must be open to the ideas expressed by others, even if they disagree with these ideas, capable of recognizing the limitations and biases in their own views under pressure of critical scrutiny, and willing to revise their beliefs where necessary. "e polemic nature of extreme speech, however, precludes this type of rational dialogue. Extremists often bring to debate %xed opin-ions, established political ideologies, and dogmatic religious beliefs. "ey do not enter into dialogue to hear other viewpoints or have their beliefs chal-lenged, but do so in order to impose their beliefs on others or to insist that their doctrine should be the basis for organizing public life. "is suggests that extremists are unlikely to change their minds or reject an erroneous position under pressure of critical scrutiny. It also suggests that the use of media and other public forums by extrem-ists does not necessarily re$ect a desire to enter public debate in good faith. Much of the in$ammatory speech used by extremists calls for the suppres-sion of another group of people or the destruction of particular ways of life. Consider, for example, recent protests by the Westboro Baptist Church. "is group believes that God is punishing the US for tolerating homosexuality, and uses the funeral services of soldiers to protest against homosexuality. "ey carry signs stating “God hates you” and “You are likely to go to hell”. "ey justify their protests in terms of exercising their free speech rights, and as contributions to public debate,25 even though what their protests are aiming to achieve is suppression of a particular way of life. Or consider the speeches of Nazis who argue, on free speech grounds, that they have a right to enter into public deliberations and make demands of the State and oth-ers. "eir use of public forums to express extreme views is not indicative of a desire to enter into dialogue with others for the purposes of negotiating di#erences. Jeremy Waldron has suggested that instead of approaching free speech in these sorts of cases in terms of each individual’s interest in express-ing his views, we should think about it in terms of each person’s interest in participating on equal terms in a form of public life where each person can speak his or her own mind. For Waldron, to count as a genuine exer-

25. Adam Liptak, “Justice takes up Funeral-Protest Case”, !e New York Times, 7/10/2010.



cise of free speech, a person’s contribution to debate must be related to her opponent in a way that makes room for both of them. "ough they claim to be exercising that right, the Nazis’ speeches do not have this character. "e speeches they claim a right to make are intended to bring an end to the form of life in relation to which the idea of free speech is conceived. We do not, therefore, have an obligation to engage with speakers of extreme speech because the content of their speech acts and the intentions motivating them are incompatible with the very idea of the right they are asserting.26

"e version of the argument from truth we have defended can give us some guidance in assessing what constitutes legitimate public debate. Con-tra Malik, it suggests that not all public dialogue necessarily constitutes legitimate public debate. Nor is it the case that the social condition of free speech is necessarily promoted by policies of maximum protection of all speech, whatever its content. Rather than defend a principle of maximum protection, we suggest that debate about which speech should be protected should focus on whether certain types of speech are likely to contribute to public understanding and debate. Shifting the focus in this way provides a response to the standard argument for the maximum protection view, namely, that maximum protection should be the default policy since it is di!cult to determine in advance which ideas are most likely to be conducive to the emergence of truth. Saul proposes a variant of this argument, claiming that there are no clear criteria for distinguishing between genuine criticism and incitement to violence.27 We disagree. If the criterion for assessment is the extent to which certain types and tokens of speech contribute to public understanding and promote rational public debate then there seems to be a di#erence between pointing out why a government is wrong about some-thing or why the insurgency in Iraq might be justi%ed and statements like “it is permissible to bomb in%dels”. "is is not to say that there is a clear-cut criterion for determining which speech promotes rational public debate. In some cases, this will be quite a contested matter. Our point, however, is that the issue of what constitutes legitimate speech should be made the focus of the debate, and this is di#erent from simply taking the default stance of maximum protection. Speakers who criticize government policy, or express support for upris-ings, or even speakers who express support or sympathy for the aims of so-called terrorist organizations are engaged in expressive speech acts that arguably contribute to public debate insofar as their aim is to promote truth

26. J. Waldron, Liberal Rights: Collected Papers 1981–1991 (Cambridge: Cambridge University Press, 1993), 222–23.

27. Saul, “Speaking of Terror”.



or rational decision-making. "ese expressive speech acts can enable us to understand the motivations of those engaged in terrorist acts or they may enable us to criticize government policy. To the extent that these speech acts raise awareness about social injustice and oppression, and to the extent that speakers propose a resolution to these issues by political means, such speech may not be regulated. However, if such speech proposes a resolution to these issues by way of violence, or if it consists of mere vitriol or hate speech, or the advocacy of violence against various groups (and much of extreme speech consists in precisely this), then it cannot reasonably be claimed to contribute to public debate.28

"ere will, of course, be borderline cases. A speaker’s opinion or assessment of a situation, o#ered in good faith, can be misinterpreted or acted on by others in a way the speaker did not intend. In this case, the undesirable, but unintended consequence of this speech act may be something that we have to tolerate in the interests of free speech. A speaker’s opinion can also have violent consequences if the opinion is expressed in inappropriate circumstances. To use Mill’s famous example, an opinion that corn dealers starve the poor ought be permitted when simply circulated through the press, but may justi%ably attract sanctions when spoken before an excited mob assembled before the house of a corn dealer. For Mill, “even opinions lose their immunity when the circumstances in which they are expressed are such as to constitute by their expression a positive instigation of some mischievous act”.29 Our point here is that it is possible to distinguish between criticism and incitement in most circumstances, by assessing the contribution the speech act makes to public debate, and the extent to which it achieves the social goods that speech is valued for. If the speech does make a contribution to public debate, then it should be protected, even if it has undesirable consequences. Our interpretation of Mill’s argument from truth %nds support in the literature on civic virtue, speci%cally in accounts of the social and political virtues required of citizens in liberal democratic societies characterized by disagreement, such as the virtues of tolerance, civility and mutual respect. "ere is considerable debate within this literature about whether these vir-tues must be premised on a Rawlsian notion of public reasonableness or whether less stringent requirements on reason-giving are su!cient. "e notion of public reasonableness requires that the reasons or principles to which citizens appeal in advocating political proposals must be reasons that

28. Recall that this discussion only applies in reasonably functioning liberal, democracies. "e advocacy of violence may be justi%able in cases where these conditions do not hold. "is problem is, however, outside the scope of this paper.

29. Mill, On Liberty, 119.



all citizens can share, that is, accept as good reasons, however much they might disagree about their comprehensive moral views. On the less stringent view, the requirement is that we are obliged to provide reasons for our politi-cal views that others can recognize as genuine reasons, even if they do not accept these reasons as good reasons. We don’t propose to engage with this debate here. What is relevant for our purposes is that proponents on both sides of this debate agree that civic virtue requires citizens to be minimally reasonable and willing to listen to the views of others; that is, their disagree-ments must arise from the conscientious exercise of reason, rather than from irrational prejudice or hatred, and they must not use coercive means to try to impose their views on others. For example, in his in$uential analysis of liberal virtues, William Galston links the social virtue of tolerance with the political virtue of public dis-course. He characterizes the latter virtue as “the willingness to listen seriously to a range of views which, given the diversity of liberal societies, will include ideas the listener is bound to %nd strange and even obnoxious” and “the willingness to set forth one’s own views intelligibly and candidly as the basis of a politics of persuasion rather than manipulation or coercion”.30 Galston’s reference to ideas that the listener %nds obnoxious is echoed in Rainer Forst’s analysis of the virtue of tolerance.31 Forst argues that tolerance is a complex virtue, requiring citizens to accept, on the basis of higher-order moral rea-sons of respect and justice, ethical views that they may %nd objectionable or wrong. It thus requires citizens to be capable of self-restraint and ethical self-relativization. Ethical self-relativization does not demand that citizens must actively question the truth of their ethical views; what it requires is that they must recognize that others might reasonably disagree with their views. "e notion of reasonable disagreement, as Forst understands it, is not a prudential matter of compromise or reaching a modus vivendi, although he accepts that on some issues this may be all that can be achieved. Rather, it is a normative notion, implying respect for others as reasonable and as having a basic right to justi%cation. "e requirement of “reasonableness” thus means that the virtue of tolerance does not require toleration of those who lie beyond the limits of toleration because they deny toleration as a norm. Nor does it require toleration of those, such as racists or Nazis, who do not respect others and whose views are not based on ethical values but on irrational prejudice and hatred.

30. W. Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (Cambridge: Cambridge University Press, 1991), 227.

31. R. Forst, “"e Limits of Toleration”, Constellations: An International Journal of Critical and Democratic !eory 11(3) (2004).



In a discussion of political disagreement and civility, David Archard pro-poses a related analysis of civility or mutual respect as reasonable disagree-ment. Contra Rawls, he argues that civility does not entail the requirement of public reasonableness. However, it does oblige us as citizens to provide one another with reasons for our political views and actions, reasons that others can understand as our reasons, even if they disagree with those rea-sons. Further, in order to meet this obligation, citizens must display the characteristics of integrity, honesty, conscientiousness and openness. "ey must endeavour to be consistent, honest and conscientious in their think-ing and reasoning, and open to persuasion if their reasoning is shown to be mistaken by the evidence or the arguments of others.32

We acknowledge that much of what passes for public debate in liberal democracies does not meet the norms of tolerance and civility as these virtues are characterized in the literature on civic virtue. Nor does it tend to promote truth or rational decision-making. We have argued that only speech that is likely to contribute to public understanding and debate should be protected, and that these contributions must meet at least mini-mal norms of reasonableness. "ere are two possible objections to these claims; the %rst is that the test of reasonableness may tend to favour some forms of speech over others. For example, it may tend to favour the speech of academics, journalists, and other public %gures over those less educated or articulate. "e second is that we have raised the bar too high, thereby excluding much of what currently passes for public debate from protection. With respect to the %rst objection, we should stress that the norms we seek to defend are minimal norms of reasonableness. "is does not mean that a person must be perfectly rational for their speech to meet the test of reasonableness; all that is required by this test is that the person’s views be substantiated with good reasons that others can accept, even though they may ultimately disagree. "ese reasons do not need to be well articulated or perfectly coherent, but they cannot be based on dogma or prejudice. Moreover, the person must be willing to accept criticism of their views, and correct them where appropriate. In response to the second objection, we accept that our argument might exclude other forms of public discourse and not just extreme speech. For example, the argument will have implications for some forms of pornogra-phy and hate speech, given that these types of speech do not make signi%cant contributions to public debate, and do not meet the norms of tolerance and

32. D. Archard, “Political Disagreement, Legitimacy and Civility”. Philosophical Explorations: An International Journal for the Philosophy of Mind and Action 4(3) (2001).



civility.33 It may also have implications for some forms of “talk back” radio, or internet “blogging” if the discourse is not suitably rational or su!ciently critical. However, we don’t think this is a decisive objection to our view. For it should not be assumed that everything that currently passes for public discourse in liberal democratic societies automatically deserves to be pro-tected. "e proliferation of types of speech, for example on the internet, that violate basic norms of tolerance and civility, should force policy-makers and citizens in liberal democracies to address the questions of what character-izes the social conditions of free speech and of whether policies of maximal protection do in fact promote this condition.

3. Civility, Containment and Political Stability

"e norms of civility and tolerance are not only intrinsically valuable, but serve the important function of enabling us to live together in a single polity despite our disagreements. "ese norms can serve the purpose of maintain-ing political stability. A failure to meet these basic norms may, we suggest, undermine the conditions necessary for the $ourishing of free speech, and by implication, could undermine the normative stability of democracy. Accord-ing to Rawls, normative stability requires two components: %rst, it requires a degree of overlapping consensus on the core political values of freedom and equality, even though citizens may have opposing comprehensive doc-trines. "at is, it requires citizens to endorse the same public conception of justice and to use this conception to give content to their political judgments on basic institutions. Second, it requires that unreasonable comprehensive doctrines do not gain enough support to undermine the society’s essential justice.34 Extreme speech can be destabilizing if enough people accept the ideas, and come to reject the basic freedom and equality of persons. In this case, a normatively stable liberal democratic regime becomes impossible. For this reason, it may be necessary to contain some types of extreme speech so that they do not become widely acceptable doctrines, thereby threatening to undermine the essentials of a liberal democratic regime.35 As

33. We concede that some forms of pornography might have positive instructive value. Our concern here is with violent and misogynist forms of pornography, which we think does not make any valuable contribution and may cause signi%cant harm to women.

34. Rawls, Political Liberalism, 1996a: 39. 35. Whether or not containing extreme doctrines does prevent them from becoming widely

acceptable is a di!cult empirical question, and one that we are not well placed to settle. Our point is one of principle: in principle, it may be necessary to contain some ideas for the reasons we have outlined in the discussion.



Quong argues, history tells us that regimes where these basic liberal ideals are not %rmly entrenched have been vulnerable to violations of human rights and other serious injustices. For example, the acceptance of slavery in the United States is a compelling example of a generally liberal society which, nevertheless, allowed unreasonableness – in the form of racism – to spread unchecked, resulting in gross violations of the rights and dignities of Afri-can Americans.36 Ideas that reject the fundamental tenets of liberal democ-racy – that political society should be a fair system of social cooperation for mutual bene%t, that citizens are free and equal, and the fact of reasonable pluralism – should thus be “contained” not only in cases where a regime is facing imminent violent revolt, but where such ideas may be inculcated in citizens and where citizens come to accept illiberal ideas.37

Containment of unreasonable doctrines, according to Quong, can be de%ned as any policy whose primary intention is to undermine or restrict the spread of ideas that reject the fundamental tenets of liberal democracy.38 However, a policy of containment need not mean legal regulation, although in some cases, this may be necessary. Extreme speech can also be contained through the adoption of preventative strategies such as the provision of deliberative spaces and other institutional support (education for example) in order to %rst, cultivate the norms we defend and second, provide all speak-ers with a space to express themselves, in the hope that if they feel included in deliberation and less alienated, they are less likely to resort to extreme speech in making their demands of the state/civil society. In the second section, we argued that in order to realize the social condi-tion of free speech, some state regulation of the market is necessary. State regulation can be understood in a number of di#erent ways. At one level, it can be understood in terms of legal regulation, in the form of prohibi-tions of certain types of speech or government censorship. At a second level, regulation can include restrictions on media ownership, or other restraints on individual liberties in order to ensure that no one view dominates the public sphere. At a third level, regulation of speech requires governments and other social institutions to create the right kind of social environment for free speech to $ourish. Cultivating the right kind of social environment includes support for educational and cultural institutions. "ese di#erent levels are all attempts by the state to intervene in the “marketplace” where speech occurs.

36. J. Quong, “"e Rights of Unreasonable Citizens”, !e Journal of Philosophy 12(3) (2004): 324.

37. Quong, “"e Rights of Unreasonable Citizens”, 324–25. 38. Quong, “"e Rights of Unreasonable Citizens”, 323.



"ere are two things to note about characterizing state intervention in terms of these di#erent levels. First, the levels of regulation can be in tension with one another. A failure at one level can result in failures at other levels. For example, a failure to regulate the media will have repercussions for the education of citizens and for their ability to participate in debate. Second, it highlights a de%ciency in the standard harm argument. "e harm argument endorses a minimal level of state involvement excepting those circumstances where the speech causes harm. "is, on our account, is a necessary, but not su!cient condition for enabling the social condition of free speech. What it fails to account for is that more than the absence of state intervention is required in order to realize the social and individual goods – such as the discovery of truth, democratic participation, and individual autonomy – that free speech is supposed to achieve. Governments must also take an active role in creating the right kind of social environment for free speech to $ourish, including cultivating in citizens respect for the norms of civility and tolerance; this is the third level of regulation identi%ed above. Our argument for the “containment” of unreasonable doctrines, and in particular for the state to take an active role in promoting the social condi-tion of free speech, %nds support in work by Katharine Gelber 39 and Susan Brison,40 applying capabilities theory to the regulation of hate speech.41 Gelber points out that capabilities theory requires governments “to ensure the provision of adequate institutional, material and educational support to make it possible for each individual to reach a capabilities threshold, so that they may be capable of choosing how to live well and who to be”.42 Adopting Nussbaum’s approach to the central human functional capabili-ties, Gelber argues that a capabilities framework highlights the constitutive role of thought and expression in the formation and exercise of individual capabilities, and hence the importance of free speech protections to indi-vidual autonomy. However, while providing a powerful argument in defence of such protections, she thinks the capabilities approach also provides a powerful justi%cation for the regulation of speech, such as hate speech, that impairs the development of individual capabilities or imperils their exercise

39. Gelber, “Freedom of Political Speech, Hate Speech and the Argument from Democracy”; see also Gelber “Reconceptualising Counter Speech in Hate Speech Policy”.

40. Brison, “Relational Autonomy and Freedom of Expression”. 41. It also %nds support in relational approaches to autonomy, which highlight the relational and

social conditions necessary for the development and exercise of autonomy. For an overview, see Mackenzie and Stoljar (2000). For a discussion of some conceptual connections between capabilities theory and relational approaches to autonomy see Mackenzie (2010).

42. Gelber, “Freedom of Political Speech, Hate Speech and the Argument from Democracy”, 314.



– for example by denigrating, vilifying, silencing, disempowering or socially marginalizing persons or groups who are the targets of hate speech; under-mining their self-esteem and self-respect; instilling or perpetuating negative stereotypes about members of a group; or inciting hatred.43

Brison44 argues on similar grounds that capabilities theory provides a justi%cation for the regulation of hate speech, identifying a number of ways in which hate speech can undermine the capabilities of its targets and so impair their autonomy. First, hate speech can incapacitate its targets’ rational competence to respond, by provoking in them responses of rage, fear, or humiliation. Second, it creates a hostile social environment, which impairs autonomy in a range of ways: by undermining a person’s self-esteem, self-respect and sense of her own competence;45 by restricting the range of sig-ni%cant options available to her, for example educational or employment options;46 and by shaping her preference structure (the phenomenon of adaptive preference formation).47 "ird, it can constitute a form of group libel that causes or entrenches harmful stereotypes and in so doing dimin-ishes the range of options available to individual members of the group, by a#ecting other people’s beliefs and attitudes about those individuals, and their behaviour towards them. "e shameful depiction by sections of the Australian media and by some politicians of asylum seekers as “queue jump-ers”, potential terrorists, and “illegal” migrants, and the e#ects of this speech in shaping social attitudes towards asylum seekers provides a frightening example of this kind of group libel. Both Gelber and Brison argue that, in some contexts, the regulation of hate speech may justi%ably take the form of restrictions on certain freedoms the exercise of which con$icts with social justice. Gelber cites

43. Gelber, “Reconceptualising Counter Speech in Hate Speech Policy”, 13. 44. Brison, “Relational Autonomy and Freedom of Expression”. 45. Several theorists of relational autonomy argue that self-a#ective attitudes, such as self-trust,

self-esteem and self-respect are necessary for autonomy. See, for example, P. Benson, “Free Agency and Self Worth”, Journal of Philosophy 91 (1994); J. Christman and J. Anderson (eds.), Autonomy and the Challenges to Liberalism: New Essays (Cambridge: Cambridge University Press, 2005) and C. Mackenzie “Relational Autonomy, Normative Authority and Perfection-ism”, Journal of Social Philosophy, 39 (4), (2008): 512-533.

46. Joseph Raz’s work has been particularly in$uential in drawing attention to the importance of “signi%cant options” for autonomy, and to the role of the social and cultural environment in shaping a person’s option set. See, J. Raz, 1986. !e Morality of Freedom (Oxford: Clarendon Press, 1986); and J. Raz, “Multiculturalism: A Liberal Perspective”, In J. Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), 170–91.

47. "is is the phenomenon whereby persons in hostile social environments, or subject to depri-vation or extreme constraint, adapt their preferences to their environment, eliminating or failing to form preferences that cannot be satis%ed, and even failing to conceive how their preferences might di#er in a di#erent environment.



Nussbaum’s example of hanging out a sign saying “No Blacks Here” as a freedom that may justi%ably be curtailed on these grounds.48 Brison gives the example of the freedom to print a newspaper article claiming that black males have a propensity to rape, as a freedom that may justi%ably be cur-tailed. But regulatory intervention may also take more positive forms aimed at enabling individuals to develop and exercise the capabilities required to participate in social discourse. Gelber suggests a range of targeted posi-tive interventions that might be used to counter hate speech, including anti-racism awareness programs in schools, workplaces and sporting clubs; subsidizing community arts programs; or supporting the production and broadcast of radio or television advertisements aimed at countering racial stereotypes.49

We think the arguments of Gelber and Brison concerning hate speech apply also to extreme speech. "e ability of free speech to achieve the social goods for which it is valued – the discovery of truth, democratic participa-tion, and individual autonomy – is inhibited by environments where extreme speech is accepted. It can be inhibited in a number of ways. For free speech to function in the way intended by Mill requires, at a minimal level, that all participants have both the capacity and the opportunity to participate in democratic self-governance and legitimation processes. Environments where extreme speech is tolerated can impede both an individual’s capacity and opportunity to participate in deliberation. For example, the tolerance of hate speech in a society can have the e#ect of creating and legitimating the type of oppressive social relationships and institutional structures that impede the development of full autonomy, and by implication, an agent’s capacity to participate in democratic processes. As Gelber notes, in some cases, those subjected to hate speech are prevented from engaging in speech or are prevented from “speaking back”. "is occurs in cases where an utter-ance is made which raises a “truth” claim in a world characterized by inequal-ity, and where the speaker is in a position of power relative to the hearer. "e hate speech can act to a!rm the “rightness” of norms and values that enact and support discrimination.50 Similarly, speech advocating violence can have a “chilling” e#ect on the speech of others insofar as participants to debate may feel threatened or intimated, and thus less likely or reluctant to deliberate with those advocating violence, or it could lead to the spread of anti-democratic ideas, such that democracy itself is threatened.

48. Gelber, “Freedom of Political Speech, Hate Speech and the Argument from Democracy”, 319.

49. Gelber, “Reconceptualising Counter Speech in Hate Speech Policy”, 15. 50. K. Gelber, Speaking Back, 117–18.



Free speech also requires the creation and cultivation of public spaces for deliberation, where citizens can deliberate about contested values and competing conceptions of the good, in order to ensure that citizens have the opportunity to participate. Provided that the %rst condition is met – that citizens have the right kind of education, including civics education and thus have the necessary skills for participating in public deliberation – the public space should ensure that all citizens have equal access to ensure equal oppor-tunity, and that their views are considered seriously. Equal participation or access also functions to ensure inclusion, thus keeping in check potential feelings of alienation from the political process. "ese social conditions are demanding ones, but they are the ones that Mill assumed already existed when formulating his theory of liberty – that is, he assumed that citizens would have the requisite education, including civics education, such that the marketplace of ideas can promote the social goods for which it is valued, including the discovery of truth. In partially adopting Rawls’s argument for the containment of unreason-able ideas in the interests of maintaining the stability of democratic insti-tutions, this account may be subject to the objections Chantel Mou#e has made against the liberal project more generally. Mou#e has argued that the liberal emphasis on consensus and reasonableness in public deliberations is partly to blame for the proliferation of terrorist discourse. By excluding certain types of speech from discourse because they violate the norms of civility and tolerance, or because they are radically di#erent, or because the views expressed are unreasonable, we fail to give those with legitimate griev-ances access to political channels that would enable their voices to be heard. Mou#e argues that one of the central traits of liberal thought is the rational-ist belief in the availability of a universal consensus based on reason. "is kind of liberalism is, however, unable to adequately grasp the pluralistic and con$icted nature of the social world, where no rational solution to disagree-ments could ever exist. Liberalism remains uncomfortable with con$ict, and so attempts to negate this antagonistic dimension to politics.51

"is for Mou#e is not an empirical oversight but is constitutive of the liberal project. "e consequence of this omission is very real and dangerous because it does not allow for the expression of dissent. She suggests that we need a way of thinking about our opponents not as enemies that need to be eradicated or whose demands are illegitimate, nor as competitors whose interests can be dealt with by negotiation or reconciled through delibera-tion. In cases where we attempt reconciliation or negotiation, we eradicate the antagonistic element essential to politics. Mou#e argues for an agonistic

51. Mou#e, On the Political.



model of the political where con$icting parties acknowledge that there is no rational solution to their con$ict, but nevertheless recognize the legitimacy of their opponents: “they are ‘adversaries’ not enemies. "is means that, although in con$ict, they see themselves as belonging to the same political association, as sharing a common symbolic space within which the con$ict takes place” .52 For Mou#e, antagonistic con$icts are less likely to emerge as long as agonistic legitimate channels for dissenting voices exist: “otherwise dissent tends to take violent forms, and this is true in both domestic and international politics” .53

In response to Mou#e’s concerns, we accept that disagreement is an ines-capable fact of pluralist societies, and that some disagreements are intractable or irresolvable. Our argument for the norms of civility and tolerance does not demand consensus over all contested claims, although it does require consensus over core democratic values, such as freedom and equality. We are more concerned with the form such disagreement takes, rather than the content of it. Forms of expression that uphold the values of civility and tolerance are better able to promote the collective and individual goods that free speech is supposed to achieve, including the collective good of the discovery of truth, political stability, and the individual good of autonomy. "ey are better able to uphold such values because they facilitate the kind of dialogue and critical scrutiny required for achieving the objectives of free speech. Forms of speech that express disagreement in violent or hostile ways may impede the open dialogue and critical engagement necessary for truth to emerge, and may have adverse consequences for the viability of the public sphere, insofar as they may undermine the normative stability of democratic values and institutions. Furthermore, our emphasis on the social conditions necessary for speech ensures that all persons not only have the capacity to contrib-ute to public deliberation, but that they also have equal opportunities to participate and are encouraged to do so. "is condition may address the concern that our account would function in exclusionary ways, thereby compounding the problem of extreme speech by failing to provide outlets for dissent and disagreement. If it is the case that people do feel alienated from political processes, and thus %nd no outlet for their grievances, then this may be more of a failure to provide the necessary social, political and economic infrastructure that would provide people with the capacity and opportunity to participate, rather than an issue with the principles we are defending.

52. Mou#e, On the Political, 20. 53. Mou#e, On the Political, 21.



We have argued against a principle of maximum protection for extreme speech on the grounds that such discourse does not contribute to achieving the collective and individual goods that free speech is intended to achieve, and may in fact, have adverse e#ects on the public sphere. Based on a dif-ferent interpretation of Mill’s argument from truth and the argument from democracy, we have proposed a criterion of assessment that would render only those speech acts that contribute to the discovery of truth and rational decision-making worthy of protection. "is does not mean that we support censorship of speech that fails to promote these objectives, although this may be required in some circumstances. Our aim here has been to address the question of why free speech is important and whether the arguments that are traditionally used to support it – arguments supporting policies of maximum protection – do in fact support the objectives we think are important. "e criterion of assessment we have proposed aims to provide a critical normative perspective from which we might begin to address such questions.

Sarah Sorial is an ARC Research Fellow in philosophy and law at the University of Wollongong. Her research and teaching expertise includes the areas ethics, political phi-losophy, philosophy of law, philosophy of feminism, and phenomenology. Her current project is concerned with the limits of free speech and political violence. She has pub-lished in journals including Philosophy Today, International Philosophical Quarterly, Law and Philosophy, Journal of Value Inquiry, Ratio Juris, and International Political !eory.

Catriona Mackenzie is Professor of Philosophy and Director of the Research Centre for Agency, Values and Ethics at Macquarie University, Sydney. Her research and teaching expertise spans ethics, moral psychology, feminist philosophy, political philosophy, and applied ethics. She is co-editor of Relational Autonomy: Feminist Perspectives on Auton-omy, Agency, and the Social Self (New York: Oxford University Press, 2000), Practical Identity and Narrative Agency (New York & London: Routledge, 2008), and Emotions, Imagination and Moral Reasoning (New York: Psychology Press, 2011). Mackenzie has published in multiple edited collections and in journals including Australasian Journal of Philosophy, Hypatia, Journal of Applied Philosophy, Journal of Social Philosophy, Philo-sophical Papers, and Philosophical Explorations. She was awarded the 2007 Australian Museum Eureka Prize for Research in Ethics. Her current research includes projects on autonomy, on the moral and political obligations arising from vulnerability, and on conceptions of the self.

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