Mill's account of the right to free speech
Its contemporary significance(1)

Filimon Peonidis
Department of Philosophy
Aristotle University of Thessaloniki

It is beyond dispute that Mill's philosophical defence of free speech has become an indispensable part of the western intellectual tradition. This is attested by the fact that many people regard his views on the subject as common knowledge without feeling the need to trace their origin. Mill himself would not welcome this development, since he feared that any established opinion can easily turn into a dead dogma. Thus, he would urge us to reflect afresh on its significance. Many contemporary scholars explore the second chapter of On Liberty on the assumption that it contains an outline of an adequate general theory of free speech(2), conceived as a systematic account of the reason(s) we have for granting or withholding protection to broad categories of expression. If this assumption obtains, then Mill's 'theory' runs into trouble, for its basic tenet(3), namely free speech's contribution to the formation of true and justified beliefs, proves insufficient and misleading. It is insufficient because, if we stop confining ourselves to 'views' or 'opinions', we realise that in certain occasions the incontestably harmful consequences of certain expressive acts outweigh any epistemic interest we might have in them.(4) It is misleading because nowadays the controversial and hotly debated free speech cases are not exhausted in the ones where a few people are engaged in some kind of religious, philosophical or scientific controversy, that pervade and to a great extent determine Mill's entire account.

Yet, if we stop posing Mill questions concerning the validity of his (allegedly) general epistemic justification of free speech and concentrate instead on other more specific aspects of his extremely rich and innovative analysis, a different picture emerges. Starting from this general premise I shall focus on certain less evident aspects of his advocacy of free expression that, in my opinion, can prove valuable to present and future concerns. I will argue, rather elliptically, that Mill offers us an insightful discussion ethic model that resembles analogous current models and, in more details, that he provides us reasons for regulating the media, and television in particular.

a. A discussion ethic

Mill's frequent references to freedom of discussion indicate that he had in mind an ideal form of discussion which would serve as a model for actual discussions on crucial issues. This ideal discussion, which is of paramount social value, is governed by certain rules stated or implied in various passages of On Liberty. Hence, it makes sense to speak of a discussion ethic that can be reconstructed as follows:

i. All views should be expressed, heard and taken seriously into account. (L, Ch. 2)

ii. Special priority and emphasis should be given on the expression and the charitable understanding of minority and unpopular positions (L, 52, 54 and passim.)

iii. No view expressed is regarded as vested with such authority to make it immune to criticism (L, 26, 54 f. and passim ).

iv. It is essential for all participants to be true supporters of the positions they express. Positions that are described merely to be refuted may be easily distorted (L, 42).

v. Everyone has to justify her your own position in the most satisfactory manner, even if she believes that the positions of the other participants are outrageous or absolutely mistaken. (L, 40 f.)

vi. Recourse to deceptive strategies to win the argument (lies, fallacies, deliberate misrepresentations etc.) is to be avoided, although it is unlikely to be totally eradicated (L, 60).

vii. No participant should be vilified because of her opinions. If any offensive language is to be tolerated, it has to come from those attacking the prevailing opinion. (L, 60-1)

If these rules are observed, truth is likely to emerge. This will benefit discussants and observers alike and it will have a positive effect on social utility. Mill recognises that views carry with them a pre-established good or bad reputation, that is independent of their contribution to the formation of true and justified beliefs, and tries to redress the balance in favour of the most disadvantaged. In addition, he acknowledges that discussants are not that rational to be aware of any trick they employ to gain some points in the debate. However, he desires their use to be kept at minimal levels and all deviations to work to the advantage of the positions overlooked or stigmatised by the "public mind".

Mill deserves credit for sketching a model of a discussion ethic, that anticipates current developments, such as the emergence of discourse and deliberation as key normative concepts. But its value is not only historical. It is my impression that even opponents of liberalism or utilitarianism might endorse certain elements of it, but I will not pursue this analysis further.

b. A rationale for media regulation

For earlier liberals freedom of expression was mostly discussed in a strict political context. The major threat to it was coming from public authority and a common defensive strategy was to show that critical political speech, if is kept within certain limits, does not undermine political and social order. This is the line taken by Benjamin Constant. For him the assumption that the people or the majority of them might express an equal or bigger threat to freedom of expression was inconceivable. He even argued for trial by jury on the grounds that the layman's judgement is always to be trusted more than the judge's.(5) The idea of a biased jury who finds guilty on circumstantial evidence someone who simply differs from its members, was alien to him. Mill reoriented and revitalised the discussion by pointing to another less conspicuous but equally menacing danger for freedom of expression: The tendency of society to impose "by the force of opinion and even by that of legislation" its own "opinions and inclinations as a rule of conduct on others" (L,18). Everything that disputes the prevailing opinion or simply deviates from it is met with indifference, suspicion or even hostility. But this counteracts a substantive conception of freedom of expression, even if dissenters are not threatened with legal sanctions.

How does the regulation of modern media fit in this picture? From the late fifties and onwards in many places of the world the most powerful and popular of the electronic media, commercial television, came to express the above major threat to freedom of expression, that is the prevailing public opinion or, more accurately, its own version of it. This leads to the exclusion and silencing of minority views. In addition, television does systematically violate the rules of the Millian discussion ethic, thus prohibiting the overwhelming majority of the citizens from forming true or reasonable beliefs on issues that matter. All these call for a special state intervention in favour of freedom of expression, with which, as I shall argue, Mill would concur.(6)

Commercial privately owned television stations depend on advertising revenues. These in turn are fixed by the ratings system which, if reliable, provides information about the percentage of viewers watching a particular program at a particular time. High ratings are translated into significant profits and stations have an irresistible incentive to stick to the programmes preferred by the majority. Questions of quality, taste, fairness, objectivity and educational or social value come second or are mostly disregarded. Thus, at first sight, the opinions - the term here is used in the widest possible sense to include not only views but values, attitudes, stances and even 'forms of life' - conveyed by television appear to be representative of what most people think. However, this appearance of democratic legitimation is deceptive. Viewers are not asked to make explicit their own suggestions on what it is worth broadcasting or to offer detailed argumentative evaluations of particular programmes. Instead, they are given a prearranged set of basically similar options, - since most commercial stations try to copy past or foreign successes and to adjust programming to the advertisers' interests - , to which they have to say 'yes' or 'no'. This means that the approval elicited does not count for much. Rather, the opinions disseminated "succeed in making themselves accepted as the majority" opinions.

But even this inadequate emphasis on the preferences of the 'median' viewer has catastrophic consequences for the airing of unpopular and minority opinions. Certain controversial political and social issues are never touched or, if they are, only mainstream and innocuous views are heard. Clichés abound ("a few phrases retained by rote") and complex or alternative explanations that might challenge the received opinion on a particular issue are avoided or condensed beyond recognition. Reporters not willing to risk their jobs often prefer to say what they believe most people would like to hear rather than what they want to say.(7) They resemble in this respect those intellectually timid men described by Mill as "conformers to commonplace, or time-servers for truth, whose arguments are meant for their hearers, and are not those which have convinced themselves". (L, 38) Minorities of every sort are portrayed in negative terms or they are totally neglected to conform with and solidify widespread stereotypes and so forth. Notwithstanding claims to the contrary, the tendency to leave "all prevailing opinions outwardly undisturbed" pervades commercial television.

Coming now to the vigorous and bold public discussion ethic Mill envisaged, commercial television has a poor record to show. Every effort is made to shock, move, terrify, or impress the public rather than appeal to its intellect. T V personas often presume infallibility, conceived by Mill as "the undertaking to decide [a].. question for others, without allowing them to hear what can be said on the contrary side". (L, 28) When an exchange of views takes place, the discussants often violate the rules of the aforementioned discussion model to turn the tables on their opponents. Moreover, stations are unwilling to allow people they have accused to use the same outlet to defend themselves. And, of course, television's role as a gigantic entertainer has overshadowed its other functions to mediate between the world of politics and the private individual(8) and to contribute to the education of the general public.

The silencing of minority views and the poor quality of public discussions that characterise more or less commercial stations make it difficult for the public to understand complex issues, to figure out all the relevant arguments, to get rid of its misconceptions and to develop a "clearer perception and livelier impression of truth". The situation is aggravated by the fact that for most people television is the only source of information, since it is easily accessible and it does not require special skills of literacy. This particular outcome would constitute for Mill a greater damage than the one suffered by those whose opinions are ignored or mistreated or those who fall victims of discussions where anything goes (Cf., L, 37). If we combine this with his explicit contention that minority opinions need "not only to be tolerated, but to be encouraged and countenanced"(9) and the general conclusion stemming from chapter two that setting standards for public discussion is an invaluable social goal, we are entitled to infer along Millian lines that some sort of intervention or "precaution" is imperative.

Who would be justified to carry out this intervention? It would be tempting to suggest that Mill would be a supporter of media self-regulation. If the public exercises pressure on television stations, if it erects a "strong barrier of moral conviction" against their abuses, they will be forced to adopt codes of ethics and abide by them. Enlightened individuals should raise their voice and do everything possible. Mill's decision in the 1868 election to subsidise the campaign of the outspoken radical Charles Bradlaugh, on the grounds that he belonged to the breed of men "who judged political questions for themselves and had courage to assert their individual convictions against popular opposition" (AU, 228) bears testimony of his emphasis on individual initiative and responsibility. It is not unlikely that any attempt by a democratic government to regulate television would result in imposing its own values and beliefs on it, something that would put in jeopardy the press's independence.

A closer reading, however, of Mill's views on the limits of governmental intervention, as exposed in his Principles of Political Economy, might sustain a different interpretation. After having discussed certain exceptions to the laissez-faire principle, such as education, Mill notes: "It is, however, necessary to add that the intervention of government cannot always practically stop short at the limit which defines the cases suitable for it." (PPE, 345). He claims that when the public is unable or reluctant to take joint action to defend its interests, the government should step in and take things in its hands. However, there is particular pattern from which it is not allowed to deviate: It should not "increase and perpetuate", but correct people's helplessness". The aid "should be given as to be as far as possible a course of education for the people in the art of accomplishing great objects by individual energy and voluntary co-operation" (PPE, 346)

The issue in question is whether citizens can defend themselves without any governmental support from the aforementioned threats. This is an empirical question, but it would not be farfetched to hold that in many cases, when confronted with television, they are vulnerable and defenceless. Promoting ideas banned by the popular media through other means usually involves a high cost and uncertain results. Being denied the right to reply is a serious disadvantage. Certain categories of the population are mostly unable to realise the damage done. Others cannot bear the costs of legal action. Viewers in most countries are not sufficiently organised to make collective demands on television stations. And, even if they were in a position to bargain on equal terms with stations, it would have no assurance that they would be interested in the airing of unpopular and heretic views. Hence, it seems that some sort of state regulation, in the form of rules and guidelines issued by a public authority and backed by sanctions, is necessary to "correct people's helplessness". Accuracy, impartiality, fairness in reporting, responsibility, avoidance of deception and sexual stereotyping, respect of privacy, the right to reply, fair treatment of minorities, the protection of minors are only a few among the values that should be enforced by a code of ethics for television. In parallel, Mill would champion the need to educate the public to develop critical attitudes towards the media and to seek alternative sources of information and entertainment. This is how aid for self-reliance is conceived here.

The above remarks concern the most common kind of governmental intervention, the authoritative one. Apart from this, Mill argues, there is another less severe and less common form of intervention:

"when a government, instead of issuing a command and enforcing it by penalties, adopts the course so seldom resorted to by governments, and of which such important use might be made, that of giving advice and promulgating information; or when, leaving individuals free to use their own means of pursuing any object of general interest, the government not meddling with them, but not trusting the object solely to their care, establishes side by side with their arrangements, an agency of its own for alike purpose" (PPE, 305).

Mill's endorsement of the idea of a governmental agency to promulgate reliable information condones the establishment of publicly subsidized radio and television stations. Their task will not be to propagate and impose the views of the authorities, but to offer the public quality programs (political, educational, artistic etc.) commercial stations have no interest to broadcast. By combining both types of intervention we increase significantly the chances of minority and unpopular views to be heard and improve the quality of public discussion. Mill's legacy in these matters is in stark contrast to some contemporary liberals obsession with deregulation.

It appears that in a future politically integrated Europe and during the crooked course leading to it there will be plenty of occasions to resort to Mill's discussion ethic and to the rationale for regulating the media.

1. Notes

1 The following abbreviations of Mill's works are used in the text:

L = On Liberty in On Liberty and other Essays, edited with an introduction by John Gray (Oxford: Oxford University Press, 1991).

AU = Autobiography, edited with an introduction by John M. Robson (Harmondsworth: Penguin, 1989).

PPE = Principles of Political Economy with some of their Applications to social Philosophy, books IV and V, edited with an introduction by Donald Winch (Harmondsworth: Penguin, 1985).

2. 2 I have elaborated the general conditions an adequate free speech theory should meet in "Remarks on a Philosophical Defence of the Right to Freedom of Expression," in Rights, R. Martin and G. Sprenger, eds., ARSP Beiheft 67 (Stuttgart: Steiner, 1997), 168-76

3. 3 Apart from the epistemic justification of freedom of expression Mill refers occasionally to another type of justification: freedom of expression lies within the scope of individual freedom and it is essential for self-development. However, this second justificatory pattern is given less attention than the first.

4. 4 For instance, even those opposing the regulation of 'hate-speech' they do not invoke the truths expressed by certain racist epithets!

5. 5 Benjamin Constant, Political Writings, translated and edited by Biancamaria Fontana (Cambridge: Cambridge University Press, 1989), 295-302.

6. 6 A similar conclusion is reached by Fred R. Berger in his "Mill and the Right of free expression" reprinted in Freedom, Rights and Pornography: A Collection of Papers by Fred R. Berger, edited by Bruce Russell (Dordrecht: Kluwer, 1991). My argument, however, follows a different route and tries to draw more from Mill's texts.

7. 7 Cf. Mill's remarks on the disadvantages of working as a journalist in his Autobiography (AU, 79).

8. 8 It is noteworthy that this is the role Mill attributes to the print media. "The immediate and regular receipt of newspapers and periodicals keeps him [the political author] au courant of even the most temporary politics, and gives him a much more correct view of the state and progress of opinion than he could acquire by personal contact with individuals" (AU, 195).

9. 9 This aspect of Mill's free speech philosophy is highlighted in Jill Gordon's "John Stuart Mill and the 'Marketplace of Ideas'", Social Theory and Practice 23 (1997): 235-49.