Scanlon's approach to freedom of speech

Introduction

The emergence of freedom of speech as an essential value of Western civilization is inseparable from the emergence of individual religious liberty in the 17th and 18th centuries. For generations, following the Reformation of the 16th century, religious war, mutual fratricide, torture, hatred, and repression had rent the fabric of European society, which pointed to the increasing incompatibility of coercing inward belief and outward expression with the needs of civil and policy society.

Further, the consciences of a growing number of Europeans were moved by the seeming contrast between the violence of such coercion and repression, on the one hand, and the claims of religion to be a source of peace and love, on the other hand. For reasons of practice and conviction, then, the call for liberty of belief and expression grew steadily more compelling for those who saw such spectacle as inconsistent with religion, creating a growing desire to find ways to live in societies of more mutual forbearance. The arguments on behalf of that mutual forbearance, however, led logically and in practice to freedom of speech being recognized as both a necessity of our living peacefully together and a moral end in itself.

Discussion and Analysis

Thomas Scanlon has written an elegant essay in which he, unlike Meiklejohn, Bork, or Bickel, undertakes to distinguish freedom of expression from other freedoms without resort to the American Constitution. 80 The attempt to distinguish expression from other freedoms separates Scanlon from Mill. For while On Liberty is preoccupied with a defense of expression, Mill aims at a general theory of individual freedom. Moreover, unlike Mill, Scanlon's theory relies only incidentally on consequentialist arguments.

Accordingly, Scanlon here parts company with Bickel, Bork, and Meiklejohn as well. The heart of Scanlon's theory-ignore for the moment its justification- its author takes "to be a natural extension of the thesis Mill defends in Chapter II of On Liberty. The Millian Principle, however, is limited; it does not forbid a state from taking into account types of speech-related harms that it does not specify. Thus, for example, government could bar the use of loudspeakers because they are too noisy, and it could ban all parades because they disrupt traffic and cause litter. It is clear, therefore, that the Millian Principle is only one part of a complete theory of expression. But if Scanlon were able to justify the Principle, he would provide us with a core meaning for the First Amendments and one that was, in its domain, absolute.

Nor would that core meaning be restricted to political speech. It would embrace all forms of "expression"-scientific, religious, and artistic-covered by the Principle. Scanlon's justification for the Millian Principle has some features in common with the justification in Meiklejohn's theory of the First Amendment: it is not an individual right, but a limitation on the authority of government. And, in Scanlon's words, it derives from the proposition "that a legitimate government is one whose authority citizens can recognize while still regarding themselves as equal, ...