← Return to search results
Back to Prindle Institute

Utilitarian Justification for Survivor Cannibalism?

black and white photo of snowy mountains in the clouds

The release of the film Society of the Snow – based on the 1972 crash of Uruguayan Air Force Flight 571 into the Andes mountains – reminds us that sometimes the fantastic lifeboat-type ethical scenarios that philosophers like to discuss are never mere thought experiments. Left with no additional food, the survivors resorted to cannibalism to survive, eating the bodies of dead passengers. Cannibalism is almost universally condemned around the world. As anthropologist Beth A. Conklin explains, “Cannibalism is a difficult topic for an anthropologist to write about, for it pushes the limits of cultural relativism, challenging one to define what is or is not beyond the pale of acceptable human behavior.” Philosophers like to discuss such cases because different moral theories can give different answers, so let’s consider the coherency of the utilitarian response to this case.

On October 13, 1972 the flight left Uruguay for Chile with 45 passengers and crew on board. The plane crashed into the Andes mountains, killing twelve immediately with several more deaths afterwards. The survivors were exposed to frigid temperatures, avalanches, and starvation. Once what little food they had was eaten, the survivors resorted to survival by eating the bodies of passengers and crew who had passed away. Eventually, two of the survivors Nando Parrado and Roberto Canessa hiked for ten days into Chile to find help and the remaining sixteen survivors were rescued. Despite the fact that they were all extremely reluctant to eat their fellow passengers (some especially so), they became convinced that it was the only way to survive. However, they initially were not forthcoming with the details of how they survived until word got to the press about what had happened.

The question to consider is whether the passengers did anything wrong by surviving in this way. Many passengers were Catholic and were worried for their souls. Kantian deontology would likely condemn any such a practice as a violation of the humanity principle – treating another as a means to an end. Utilitarianism, on the other hand, seems far more eager to consider the finer points of such cases without issuing a blanket ban. According to Mill’s utility principle, “actions are right in proportion as they tend to increase happiness, wrong as they tend to produce the reverse of happiness.” On which end of the spectrum do the survivors’ actions fall?

It might seem like a straightforward answer. The survivors felt pain to have to resort to cannibalism, but probably nothing like the pain of starvation. Also, by eating the bodies of dead people, the survivors were able to live and survive, thus, presumably, creating greater happiness than the alternative being that they would all perish. Another important point was that no one needed to sacrifice their life for the others; the people who were eaten were dead and thus could feel no pain or pleasure. Thus, by sustaining their own lives the survivors satisfied the greatest happiness principle and were morally justified in their actions. Perhaps as a comfort (probably more a worry) we might think that even if there were a lack of bodies and some of the survivors needed to sacrifice their own life for the lives of others, that this too would be permitted since it would have created the most pleasure at the least cost of pain.

However, this is a bit too narrow of a way to consider this case, for we are asked to consider what will generate the greatest happiness for the greatest number of people. What about the families of those who were eaten and everyone else on the planet who might have been revolted at what took place? If we consider their utility and the potential pain they might experience from hearing their loved ones were eaten, would that be enough to tip the scales? We would also need to consider the families of the survivors and the pleasure they would experience; also, the public at large who was initially horrified. If the public’s reaction to an incident like this was broadly negative, does this mean that the survivors would have to sacrifice their lives by starving for the greater good of the public back home?

According to Mill, “the thoughts of the virtuous man need not on these occasions travel beyond the particular persons concerned,” for,

The occasions on which any person (except one in a thousand) has it in his power to do on an extended scale, or in other words, to be a public benefactor, are all but exceptional…. in every other case, private utility, the interest or happiness of some few persons, is all he has to attend to.

In other words, Mill tells us that we do not need to consider broader public utility beyond the local people involved in a situation unless there is concern that there is a violation of rights.

Does the public have a right to be free of cannibals? Did the survivors violate the rights of the family in eating their loved ones? Typically, something like this would be a violation of the law, but is this equivalent to a violation of a right? No one was prosecuted for violating the law. Perhaps the right is a more informal expectation that, as a general rule, condoning cannibalism works against the collective good – just as lying simply for expediency’s sake cannot be justified since it works to undermine overall human trust.

But is there really no reasonable room to say that an exception should be made in such an unusual case? Certainly Mill is willing to make exceptions to the general prohibition against lying in cases where withholding the fact would save an individual great evil and there are no other means. Likewise the survivors were saved from a great evil and only by engaging in a practice both they and most others morally reject. But does this mean that such an exception is justified in the manner that Mill suggests? The question now becomes whether a greater utility is preserved by carving out an exception to the practice of cannibalism in this particular case or whether such an exception runs afoul of other significant utilities we wish to preserve. This is a complicated value judgment, not far perhaps from where we began. Mill remains adamant that,

if the principle of utility is good for anything, it must be good for weighing these conflicting utilities against one another, and marking out the region within which one or the other preponderates.

But that remains a contentious process. Is our inability to land on a definitive judgment a failure of the moral theory or a testament to the thorniness of this particular case? Moral theories can be helpful in framing the issue and thinking critically about what we value, but they may not be as action guiding as they sometimes appear to be on the surface. Especially when it comes to hypotheticals come to life.

Free Speech and the Media Matters Lawsuit

image of 'no signal' TV screen with test pattern

In November 2023, Elon Musk filed a lawsuit against Media Matters (a left-leaning nonprofit dedicated to “monitoring, analyzing, and correcting conservative misinformation”) in response to their investigative report that suggested X, formerly known as Twitter, ran corporate advertisements alongside Nazi content. As a result, corporations including IBM and Comcast pulled their ads, causing further damage to a company whose reputation and finances are already bruised. Media Matters is just the latest to raise concerns about an increase in Nazi and white nationalist content on Twitter enabled by updated content policies.

But Musk is a self-described “free speech absolutist,” and his laissez-faire attitude towards hate speech has informed those policy decisions. While Musk’s position might seem extreme, it is not without precedent. The ACLU, for example, has taken a similar stance. They have come out against Musk in response to a lawsuit similar to the Media Matters one, they also represented white nationalist and Unite the Right organizer Jason Kessler in Virginia courts. They defend this action in a public statement, writing that the government should not be the arbiter of “when and whether the voices opposing a person’s speech can be preferred,” even when that speech is  “deeply offensive to others.”

The question of free speech, especially hate speech and misinformation, is nothing new, even to social media. Facebook has long been criticized for its tolerance of hate speech and misinformation, while Twitter has time and again fallen under public ire, with both Republicans and Democrats raising accusations of censorship. To explore this problem, it is first helpful to consider what limiting free speech is not. While the United States Constitution does guarantee the right to free speech under the First Amendment, this pertains to governmental interference. The First Amendment does not obviously prohibit Musk’s permissive content policies, Media Matters’s attack on those policies, nor corporations’ decision to spend their advertising dollars elsewhere.

Even so, social media’s power as a public forum complicates things. Social media corporations may be private, but they play an outsized role socially and politically, often with negative results. We saw this during the COVID pandemic, for example, where social media misinformation was responsible for increased mortality rates. Due to the magnitude of social media’s impact, there might be grounds for restricting speech in those private spheres and some places already do. Germany, for example, has strict hate speech laws that have been expanded to include internet speech, though not without controversy. (One German judge recently ruled that the law was government overreach and an infringement on free speech.)  Likewise, in the United States, there are some limits imposed even on constitutionally guaranteed freedoms: while the Second Amendment guarantees the right to bear arms, some guns like short-barreled shotguns and automatic weapons are nonetheless illegal.

While there may be good reasons for favoring permissive free speech policies, they can quickly lead to what the Austrian-British philosopher Karl Popper called the paradox of tolerance. To have a tolerant society, one that is permissive of a plurality of viewpoints and expressions, it must be tolerant of all opinions — except those that are intolerant. Intolerance undermines the very conditions for a tolerant society. In a free society, we should allow for any belief so long as it can be countered by reason. But an intolerant position, on Popper’s account, is one that refuses rational argument. And those who refuse to participate in rational, common discourse often express them through coercion, threatening to destroy the tolerant and, with them, free society. One example might be a Holocaust denier who ignores the historical and testimonial evidence supporting those events as historical fact. This person’s discourse is either irrational or not in good faith; in either case, they are not engaging in rational argument. Popper would say it is no surprise, then, that we often see violent speech and actions coming from those who hold this view.

Using Popper’s criteria for identifying intolerant speech, however, may be especially difficult in our current socio-political climate. As Thomas Hobbes said, when it comes to the perception of our own rationality, “almost all men think they have [it] in a greater degree” than any other. With so much misinformation swirling around, the marketplace of ideas has lost shared conceptions of evidence and reasons. Since the grounds for discourse themselves are questioned, both parties in a dispute are open to accusations of irrationality from the other. Mob rule decides which opinions are disqualified, and this leads right into Popper’s worries about intolerance. So, while his paradox might be a helpful way of framing the problem, it does not offer much practical advice for escaping it.

We might gain more traction, however, by looking to the British philosopher John Stuart Mill. Mill is something like a free speech absolutist himself, arguing that personal liberties must be “absolute and unqualified.” Like Popper, Mill argues that society must allow for unpopular opinions, or it is not a free society at all. When we silence people that we disagree with, we assume that our beliefs are true beyond correction. Likewise, when our beliefs go unchallenged, we hold them superficially and without much conviction. When unpopular ideas are expressed, they provide an opportunity to refine our own opinions and more clearly understand them. For reasons like these, Mill says we should allow freedom of speech and expression with almost no limits, as there is one important exception: the harm principle. Our vast personal freedoms — including the freedom of speech — end when they harm others. There is already legal precedent for restricted speech in the United States on these grounds: fraud and incitement to violence are not protected speech, for example, due to their harmful consequences. A plurality of opinions, however unpopular, should then be welcomed, so long as expressions of those opinions do not cause these kinds of injury to others.

Where does that leave us?

For both Popper and Mill, unqualified free speech rests upon the benefits of free discourse outweighing the risks of abhorrent speech; as a free society, we must allow space for persuasion. But an additional factor not yet considered here is that social media platforms like Twitter, Facebook, and Instagram are different from other media that reach large audiences such as radio, television, and other internet platforms like Substack. Timelines and newsfeeds are uniquely addictive. While social media has the illusion of offering the public a marketplace of ideas, newsfeeds and timelines are designed to engross the user, indefinitely limiting their exposure to opinions that are new or different from their own. Social media can be a tool for discourse, but it is often the antithesis of what Popper and Mill envisioned when advocating for unrestricted speech — an echo chamber that is susceptible to validating poor arguments and calcifying opinions without any opportunity for refutation. While this might be enough of a reason for a free speech absolutist to limit certain speech on social media, there remains the tremendous challenge of how we are to determine what such algorithms should filter and how.

This is no easy task. Musk’s lawsuit assumes the economic harm that Media Matters’s speech caused to X. Yet the advertisers motivated by the economic risks of being associated with Nazi content could make similar arguments. Media Matters’s report is motivated by different harms, namely social, psychological, and physical harms that they believe unrestricted white nationalist content causes. These different types of harm are not easily parsed, and one harm often indirectly causes another; someone physically harmed may not be able to return to work, for example. Yet, in the Media Matters case, direct harms like political polarization, stoking racism (social), increased hate crimes (physical), and doxing or threats (psychological) are more destructive than the direct economic harm caused by lost corporate revenue. Of course, that is only if the types of hate speech they draw attention to in their investigative report are directly responsible for causing those harms.

Does this lead us back to the same challenges facing the paradox of tolerance? Perhaps not. Where the paradox of tolerance faces challenges due to the difficulty of assessing rational discourse, cases of harm might be more easily measured. One important first step could be listening to members of communities affected by hate speech, rather than assuming on their behalf that there is or is not harm. When navigating the difficult problems of internet free speech and its limits, we might find it helpful to begin not by defining free speech, but by asking what counts as harm.

Same-Sex Marriage and the Political Process

photograph of Capitol building, Washington Monument, and Lincoln Memorial

On July 19th in a bipartisan vote the House of Representatives voted to affirm the legal right to same-sex marriage – the bill now goes on to the Senate. Currently same-sex marriage rights rest on a 2015 Supreme Court decision, Obergefell v. Hodges. However, with looming concerns that the same constitutional logic the Supreme Court used to overrule Roe v. Wade could apply to Obergefell, the House acted pre-emptively to secure same-sex marriage against the Court overruling its prior opinion.

There is a certain irony in this course of action, as it has historically been a function of the judiciary to secure rights against legislation. Additionally, the House bill is not simply Obergefell by other means, for Obergefell establishes a constitutional right to same-sex marriage, where the House bill, if approved by the Senate, only establishes it as statutory law subject to change with the biennial shift in Congress.

Same-sex marriage is a politically popular issue, so optimistically this can be viewed as the House successfully enacting the will of the people. But there lurks a question:

What matters should be subject to the whims of political process at all? Which matters should be addressed by the legislature and which matters should be best addressed by courts?

All things being equal, the legislature is where the action should happen concerning U.S. law. It is, in theory anyway, the most democratic institution and the most accountable to the people (although see Prindle Post author Alexander Spencer’s discussion of the flaws of American democracy). In his dissent on Obergefell v. Hodges, Justice John Roberts stressed that the question of same-sex marriage should be resolved through “democratic process.” The late Justice Antonin Scalia, with characteristic understatement, claimed the decision “robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

The spirit of Scalia’s critique is that courts should stay in their lane, keep their hands off the political process, and not legislate from the bench. Whether same-sex marriage is a right should be up to the American people via their representatives, and not the Supreme Court – to do otherwise in Scalia’s framing is undemocratic.

The opposing ethical concern, however, is that it makes minority rights conditional on majority approval. The English philosopher John Stuart Mill, for example, was quite wary of the “tyranny of the majority.” As he notes,

The ‘people’ who exercise the power are not always the same people with those over whom it is exercised; and the ‘self-government’ spoken of is not the government of each by himself, but of each by all the rest…the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.

Mill’s analysis directly challenges Scalia’s reflections on self-governance. If the representatives of the majority voted to strip same-sex marriage rights from same-sex couples, this would not be self-governance by same-sex couples but governance of the majority over the objections of same-sex couples.

Some of this tension is incumbent on the nature of democracy – majoritarian policy will almost definitionally be enacted over the objections of a minority.

But in cases where majority decisions are oppressive, exploitative, or otherwise fail to treat the minority as full and equal humans, safeguards may need to be placed on majority rule.

This line of thinking highlights the fact that it is not an unalloyed good to defer to democratic processes.

Mill’s concerns about the tyranny of the majority speaks to a long-standing challenge of democracy: how to ensure majority rule with adequate protection of minority rights. Famously, in Federalist Paper No. 78, Alexander Hamilton identified the courts as a key safeguard against legislative overreach.

There is no simple list of minority rights, and there is room for disagreement over what rights are implied by the Constitution and what rights are reasonable to recognize more generally. (It should be noted that the Ninth Amendment of the Constitution explicitly states that the rights listed in the Constitution “shall not be construed to deny or disparage others retained by the people,” although no Supreme Court ruling has ever upheld a right purely on Ninth Amendment grounds.) There is also room to doubt that the Supreme Court can be the neutral bulwark the Founders envisioned. Americans increasingly view the Court as an extension of partisan politics, and there is evidence that the contemporary Court is especially ideological.

The current bill, The Respect for Marriage Act, should be nothing but reassuring for supporters of same-sex marriage. It already has some bipartisan support in the Senate, although it remains unclear if it would pass a possible filibuster. Moreover, Obergefell yet stands, and so far only Justice Clarence Thomas has made explicit his desire to overrule it. Even this however speaks to a shifting calculus in how the Court views its obligations to protect minority rights from the vicissitudes of majority will.

Civility, Testimonial Injustice, and Commitment to Philosophy

black-and-white photograph of man and woman yelling into megaphones

The American people are extremely politically polarized. Polling shows that this divide is only increasing, particularly on issues of race and gender. Recent revelations that have come out as a result of whistleblowing about the practices of Facebook confirm what many of us probably already expected based on our own personal experiences — social media makes these chasms even wider by contributing to the spread of false information and creating echo chambers for groups of like-minded extremists to speak to one another at the exclusion of any dissenting voices or disconfirming evidence.

The state of politics today has many people longing for an imaginary past in which those who disagreed did so respectfully. In this utopia, we focus exclusively on the merits of arguments (the good kind) rather than simply attacking people. We recognize that dissent is healthy, and we appreciate the insight of John Stuart Mill in On Liberty when he said,

the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error. 

Here, Mill illustrates a certain kind of learning process — one that is employed by Socrates in his conversations with the citizens of Athens. To understand which conclusions we ought to adopt, we ought to listen to the arguments that people make. If we identify an error in reasoning, we can calmly point it out and everyone involved will be the better for it, as it might bring us all that much closer to truth. Perhaps, like Socrates, the finer points of our arguments will be met from even the staunchest dissenter from our position with a “that is undeniable” or “that is perfectly true” for good measure.

So, is it “philosophy to the rescue!”? One way of responding to our current predicament is to insist that everyone needs a strong education in logic and critical thinking. People need to develop the ability not only to recognize the commission of a fallacy when they see it, but also to frequently (and in good faith) reflect on their own body of beliefs and attitudes. We need to collectively get better at checking for cognitive bias and errors in reasoning in both ourselves and others.

On the other hand, we might ask ourselves whether the above account of Plato and Mill is an accurate description of the circumstances in which we are likely to find ourselves. A more compelling insight might be one from 18th century philosopher David Hume who famously said, “reason is, and ought only to be the slave of the passions.” Hume makes the argument the reason alone does not and cannot motivate us to act — it is our passions that do that. If this is the case, then if we want to arrive at a common understanding or come together in motivation toward a common cause, we need to understand the complexities of one another’s psychologies; we need to recognize the common forces that might potentially move us to action. We might have arguments for our positions, but is it really those arguments that motivate us to act in the ways that we do?

Moreover, to insist that what’s needed now in contemporary culture is more civil discourse may be to fail to recognize certain obvious facts about the way that the world works. In an ideal world, it might be the case that we could all offer arguments, and expect to be heard and understood. However, the non-ideal world in which we find ourselves is a world characterized by power dynamics and replete with testimonial injustice. Groups with power are more likely to be listened to and believed than groups without it. The claims of the rich, for instance, are often given a considerably larger platform than the claims of the poor. What’s more, those on the desirable side of the power dynamic are more likely to describe themselves and to be described by others as “rational.” Often, these descriptions confuse the category of the “rational” with the category of “positions held by the powerful.”

Philosophers from antiquity have identified the capacity to reason as the essence of a human being, but, just as reliably, the concept of rationality has been weaponized to create “us” and “them” groups which are subsequently called upon to insist on “rights for me but not for thee.” Consider, for instance the Cartesian philosopher Nicolas Malebranche’s description of the way women’s minds work:

…normally they are incapable of penetrating to truths that are slightly difficult to discover. Everything abstract is incomprehensible to them. They cannot use their imagination for working out tangled and complex questions. They consider only the surface of things, and their imagination has insufficient strength and insight to pierce it to the heart, comparing all the parts, without being distracted. A trifle is enough to distract them, the slightest cry frightens them, the least motion fascinates them. Finally, the style and not the reality of things suffices to occupy their minds to capacity; because insignificant things produce great motions in the delicate fibers of their brains, and these things necessarily excite great and vivid feelings in their souls, completely occupying it.

Indeed, many figures in the history of philosophy who argue that rationality is the essential human function are also quick to insist that not all human beings participate in this essence. For Aristotle, for example, groups that are not capable of engaging in the kinds of practical deliberations requisite for virtue, namely women and “natural slaves,” are the kinds of beings that are rightly ruled over.

In light of the weaponized history of the very concept of rationality, it is no surprise that there might be barriers to genuine rational discourse and debate — people may not recognize the biases they bring to the discussion and they may not be self-reflective enough to understand that there may be voices to which they are less likely to listen or to treat as credible. If this is the case, we run into another problem for civil discourse. When people have been the recipients of testimonial injustice often enough, they may no longer be calm about it. They may be angry, and that anger may be justified. Demands, then, for “rationality” may just be tone-policing by the group to which people have always listened.

What lessons should lovers of philosophy learn from all of this? Evaluation of arguments is, after all, what we do. Should these considerations encourage us to give up our most deeply-held convictions as philosophers? Probably not. But it should prompt us to be more reflective about the broader social and political landscapes in which we make and, perhaps more importantly, listen to arguments.

The Higher and Lower Pleasures of the French Culture Pass

image of stacked comic books

French president Emmanuel Macron recently introduced a “culture pass,” what amounts to €300 for each 18-year-old in France to spend on cultural activities – like going to the movies, seeing a play, or going to a museum – or for buying items that are of cultural or artistic value – such as books, art materials, membership in classes, etc. The French youth need only download an app, and then they have 2 years to spend the funds on whichever of the above they see fit. Some have praised the initiative for encouraging youths to experience more cultural activities after a long lockdown, as well as for stimulating the creative sectors of the economy; others, on the other hand, have taken a more cynical stance, denouncing it as nothing more than a vain attempt at wooing France’s younger voters.

There has, however, been a different kind of criticism, one that concerns what the culture pass users are spending their money on. A headline of a recent article in The New York Times, for instance, reads: “France Gave Teenagers $350 for Culture. They’re Buying Comic Books.” The article outlines how many are using their culture pass to buy manga, specifically, with some in the French media even dubbing the culture pass the “manga pass”, instead. While the Times article is, in fact, largely supportive of the initiative, it’s clear that there is some subtle judgment going on in the title.

Others have been less subtle. For instance, in a recent opinion piece at The Telegraph, the author disparagingly compares the culture pass to the Education Maintenance Allowance (EMA), funds that are available to youths in the UK for educational purposes:

“The EMA was a great scheme, but young people don’t always do what they’re supposed to with the resources that they’re given. This is a lesson now being learnt by the French government, with the news that Emmanuel Macron’s ‘culture pass’ is being used by its young beneficiaries to stockpile graphic novels instead of opera tickets… It’s no wonder that many French kids are spending their €300 on the instant gratification of an entertaining comic, not challenging themselves with an arthouse film or a three-hour play.”

Here, then, is the concern: giving youths money to spend on culture is really only worthwhile if they spend it on the right kind of culture. Art galleries and opera are cultural activities that will challenge you and open your mind to new artistic experiences; comic books, on the other hand, will not.

Is this mere snobbery, or is there something to this argument? There does exist philosophical precedent for making a distinction of this kind: John Stuart Mill, for instance, famously stated that “it is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied.” According to Mill, that this is the case is the result of there being “higher” and “lower” pleasures: those of the former type exercise our more complex capacities – say, by challenging us to use our reason or engage with difficult subject matters – while those of the latter appeal to our more animal nature – e.g., those pleasure that come along with eating, sleeping, and our more carnal desires. Mill also argued that there was no way to balance the lower against the higher: in other words, even though you might enjoy a greasy fast-food meal, no number of such meals could ever outweigh the much more quality pleasure of visiting an art museum.

It’s not clear how convincing Mill’s view is. After all, it seems to be dependent on the individual as to what one gets out of any particular experience. For instance, while one might think that going to see an opera is more worthwhile than, say, going to see the new Fast and the Furious movie, I might get more out of the experience of appreciating the excellent cinematography of the latter, especially if I’m bored to tears by the former. Something similar is no doubt the case when it comes to what one will get out of different reading materials: while one person might not find anything of value or interest about manga, others will no doubt get much more out of the experience of reading it. There doesn’t seem to be a good way, then, of clearly categorizing certain cultural or artistic experiences as objectively better than others.

Nevertheless, one might still think that there is at least a sense in which the 18-year-olds of France shouldn’t be spending all their culture pass money on manga. Here, then, is a different kind of argument: one could perhaps make best use of an initiative like the culture pass to experience a diversity of cultural activities. This is not to say that there are any specific cultural or artistic experiences that are any more valuable than any others – as we saw above, there is no specific reason to rank opera above manga. Rather, there is value to be had in the diversity of experiences itself.

There is perhaps something common both to the argument that there is value in a diversity of cultural and artistic experiences, and the one that says that the French youth are wasting their culture pass buying comic books: if all one is doing is buying more comic books, and this does not make one’s cultural experience any more diverse, then one should consider spending their money on something else instead. Where these arguments differ, however, is that if there is value in diversity, then perhaps some people should, in fact, be buying more comic books. For instance, if you’re the kind of 18-year-old who grew up listening to classical music, going to the opera, and reading Dostoevsky, then diversifying your cultural experience might mean that you should really go out and buy some manga; after all, you might learn something new.

Should Speech Have Consequences?

image of speech bubbles surrounding iphone outline

Particularly in left-leaning circles, it has become fashionable to say that those who are targeted for various kinds of sanctions for their objectionable speech — unfriending, blocking, doxing, university investigations, terminations, threats of bodily harm or death, and so forth — are merely suffering the justifiable consequences of speaking in ways that harm or offend others. This was the line taken by many commentators concerning the recent controversy at the Journal of the American Medical Association (JAMA). There, an editor of the journal said in a podcast that “many people like myself are offended by the implication that we are somehow racist.” The outcry that followed led to the resignation of the journal’s editor-in-chief. Speech, indeed, has consequences.

We might put the principle as follows: “Freedom of speech does not mean freedom from the consequences.” While this principle seems sound, in this column I want to explore some of its implications. It turns out, I think, that we have many reasons not to sanction others for their speech, however offensive or harmful it may be.

The first question we should ask about social sanctions against speech is whether we ought to think of them as forward- or backward-looking. In other words: are they justified because they are deserved by the speaker (backward-looking) or are they justified because of the beneficial effects of sanctioning (forward-looking)? Here are some familiar reasons why we ought to think of them as forward-looking.

First and foremost, any system of sanctions requires a principle of proportionality: a principle that tells us which punishment “fits” a given crime. Does a racist slur deserve a cold shoulder or a death threat? Beyond simply invoking our moral intuitions, it seems that reason has little to say about what a particular transgression deserves. By contrast, forward-looking considerations give us some rational metric by which to judge the severity of the punishment based at least in part on the nature of the “crime” and the nature of the “criminal.” We don’t punish shoplifters with death, for example, because this would give them the perverse incentive to do worse things than shoplifting, and because shoplifters are more likely to be reformed by relatively light punishments than by onerous ones.

Second, there are well-known puzzles about whether people are morally responsible in the desert-implying sense. We can bypass all of these problems by justifying sanctions not on the basis of desert, but on the basis of the effects of the sanctions.

Why, then, sanction speech? Most obviously, sanctioning speech is a form of deterrence: say this, and you will suffer bad consequences. In this way, the amount of bad speech is reduced. Relatedly, sanctioning is a way of encouraging or promoting the adoption of certain views. If the assertion that p is sanctioned, this will encourage the adoption of the belief that not p. Secondly, sanctioning speech has a signaling function: it means that certain kinds of speech are not to be tolerated, and it tells those who are offended or harmed by the speech that their suffering matters. Finally, it may have a reforming effect: the sanctioned person might, by suffering consequences for his speech, come to understand why that speech is not to be tolerated.

These are the benefits of sanctioning speech. What are the drawbacks? Sanctioning speech undoubtedly has a chilling effect. After all, we listed its chilling effect as one of its benefits! If we could all agree on a narrow category of speech that is sanction-worthy, perhaps this effect would be entirely beneficial. But it turns out, I think, that when society adopts the norm that allows sanctioning any offensive or harmful speech, this empowers people to sanction every kind of speech they don’t like. And in a pluralistic society, there is no agreement about what kind of speech is acceptable. This inevitably leads to instances of benign speech, like one’s expression of political preferences, being sanctioned. This might be why, according to a recent poll, 62% of Americans say they are afraid to express some political beliefs. It is noteworthy that this feeling crosses party lines. But democracies require speech in order to function properly; democratic deliberation is possible only when people are able not only to have opinions, but to voice them to their fellow citizens. The cost of allowing the widespread sanctioning of speech, then, is weaker democratic deliberation.

Nor does sanctioning eliminate the views it aims at effacing from public discussion. Rather, the effect of sanctioning, particularly if harsh, is often to cause those who hold the views to double down on them and to look for ways to have those views affirmed by others. Far from deterring these views, then, burdensome sanctioning may in many cases encourage their secret proliferation.

Sanctioning is also not a very effective tool for educating others or getting them to adopt certain views. In the JAMA case, it seems doubtful that anyone who does not already believe in the existence of systemic racism in medicine will adopt that belief simply because someone has been sanctioned for denying it. Sanctions are not arguments; they are in fact the opposite.

In addition to the costs of sanctioning speech, we ought to consider the benefits of tolerating speech. Expression is itself a good for the speaker, insofar as it is the exercise of their autonomy. So, tolerating speech contributes to the well-being of speakers. And as J.S. Mill pointed out, in most matters we are in a state of at least partial ignorance, so tolerating the free play of ideas can help us get closer to the truth. Furthermore, even in those areas where we are not ignorant, the free play of ideas can get us closer to knowledge of the truth by sharpening our reasons for holding our beliefs.

It is often said that toleration of offensive and harmful speech protects the powerful. Like all generally applicable principles, this is true: the universal prohibition on murder protects Elon Musk. But like that prohibition, the toleration of free speech can also protect the weak. The peaceful protests against police violence that were the hallmark of 2020 were possible only in a country where a content neutral principle of free speech is respected not only by government but by the vast majority of citizens, even those vehemently opposed to the aims of Black Lives Matter. Conversely, speech codes and other restrictions have often been used to oppress minority groups. A speech code at the University of Michigan that was struck down by a federal court in 1989 was used to punish one student for stating that Jewish people use the Holocaust to justify Israel’s policy towards the Palestinians. Another speech code complaint was lodged against a student who said that “he had heard that minorities had a difficult time in the course and that he had heard they were not treated fairly.”

One of the strengths of consequentialism is that it teaches us that everything in life is a trade-off or a balancing act among competing values. Sometimes, surely, there will be strong reasons to sanction a particular speech-act or -acts. For example, speech that is sufficiently frequent and malicious can create a hostile environment. In many cases, however, people are currently being strongly sanctioned for stray remarks or for offensive speech from a long time ago. As in the JAMA case, they are also being sanctioned for departing from the political orthodoxy of their community by, for example, questioning the existence of systemic racism. In these sorts of cases, the benefits of sanctioning are slight, and the drawbacks great. Sanctioning will create an environment in which people feel scrutinized for every indiscretion, and as a result, they will self-censor. Self-censorship is an intrinsic harm, and is also detrimental to the search for truth and the communication of political views, both essential in a functioning democracy. Finally, sanctioning will alienate the sanctioned; far from educating them or getting them and others to change their views, it will cause a defensive reaction that leaves their objectionable views intact, and perhaps more popular due to the perception that they are being suppressed.

Toleration of offensive or harmful speech comes with costs. So does sanctioning such speech. The question is whether, on the whole, the benefits of sanctioning outweigh the costs. In many contemporary cases, I would argue that the answer is no.

The Double-Edged Sword of “Free Speech”

photograph of mic on graduation stage before empty chairs

On June 2nd, The Christian Post reported the story of Savannah Lefler, a high school valedictorian in Michigan whose “Christianized” honors night speech was facing censorship by school officials; after a legal nonprofit urged administrators to reconsider, Lefler was informed that she will be allowed to deliver her prepared remarks as desired. According to First Liberty, a law firm dedicated “to defending religious liberty for all Americans” who wrote in Lefler’s defense, “Too often, we have seen well-meaning school officials thinking they are complying with the Establishment Clause mistakenly go too far and censor the private speech of students, violating students’ rights under the Free Speech Clause.” (First Liberty has also defended other high school graduates from Pennsylvania and Michigan in similar cases.)

One day later, on June 3rd, The Christian Post reported the story of Paxton Smith, a high school valedictorian in Texas who delivered a graduation speech criticizing the so-called “heartbeat bill” recently signed by Governor Greg Abbott; rather than delivering the pre-approved remarks she had written and submitted, Smith spoke for roughly three minutes against Senate Bill 8 that, among other restrictions, bans abortions performed after six weeks of fetal development. According to Smith in her surprise, unapproved commentary, “I cannot give up this platform to promote complacency and peace, when there is a war on my body and a war on my rights.”

Rather than discuss the details of religious freedom or the debate about legal abortion in this article, I’m interested in thinking about what happened on June 4th — or, more accurately, what didn’t happen. As I comb through the recent archives of several large-scale news media organizations, many of them are only reporting about one of these two high school graduates with controversial speeches.

On one hand, as of this writing, sites like Fox News and Christianity Daily are promoting Lefler’s story, including excerpts from First Liberty’s letter to the school; in one of several articles it ran on the subject, Fox News also includes multiple excerpts of the religious language from Lefler’s draft and ends with additional comments from First Liberty on Lefler’s constitutional right to free speech. (In a similar — though inverted — fashion, NewsMax and the National Review have published pieces criticizing Smith while remaining silent about Lefler.)

On the other hand, sites like CNN and The New York Times are promoting Smith’s story, including by linking to the viral video of her graduation speech; the headline for the June 4th article from CBS News reads “Dallas high school valedictorian scraps speech, makes impassioned plea for abortion rights” and ends with a statement from Smith’s school district that reads, “The content of each student speaker’s message is the private, voluntary expression of the individual student and does not reflect the endorsement, sponsorship, position or expression of the District or its employees.” (As far as I could tell, no large-scale news outlets who have remained silent about Smith have also published opinion pieces critical of Lefler.)

It might well be true that no single news source could hope to comprehensively report on every newsworthy event, so it might be unfair to imply that Fox News or CNN is doing something wrong by only reporting on one of these stories. It might also be true that one (or both) of these stories is not actually “newsworthy” (in a broadly agreeable sense) — certainly there are differences between what Lefler and Smith did, and we might not want to oversimplify those distinctions for the sake of an easy comparison.

But it seems like defenders of “free speech” (as a blunt principle) are required to support both Lefler and Smith for exercising their right to express their private beliefs in a public forum.

John Stuart Mill is perhaps one of the most famous defenders of an inherent value in free speech; in his 1859 essay On Liberty, Mill argues that opinions are a kind of public good and the absolutely free exchange of differing opinions is the best way to promote ideal outcomes for the epistemic community. No one can hope to know all that there is to know on the complex topics relevant to social life, so we must rely on each other to raise alternate perspectives for our consideration; as he says, “Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.” In short, because he also thought that false opinions would naturally give way to true ones, the more opinions we have on the table, the more likely Mill thought it would be that we would discover the truth.

Furthermore, because he found value in the process of inquiry itself, Mill saw absolutely free speech as an opportunity for the development of individual virtue; as he explains:

“No one can be a great thinker who does not recognise, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead. Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think.”

Akin to common refrains today about “doing your own research” and “thinking for yourself,” Mill believed that free speech was a necessary precondition for an optimal environment to promote intellectual activity (and, by extension, epistemic virtue).

So, suppose that Moe has a social media account and shares on it a story from Fox News about Savannah Lefler’s speech nearly being censored; if Moe believes that this is simply a matter of Lefler’s freedoms being threatened, and he also believes that justice was indeed upheld in Lefler’s case, then he should (upon pain of inconsistency) also be proud of Paxton Smith exercising those same freedoms in her speech. Similarly, if Calvin believes that Smith was doing something honorable by speaking freely (despite going off-script), then he might also be required to view Lefler in a similar light.

If, however, Moe or Calvin only feel like one of these two high school valedictorians was actually doing something praiseworthy, then it must be for reasons other than the value of free speech. This is, of course, as unproblematic as it is likely (indeed, Moe might well approve of public religious speech or not approve of outspoken abortion defenses while Calvin believes the opposite on both counts). In a society where people enjoy the freedom to hold and express such different opinions, neither Moe nor Calvin is clearly doing anything inappropriate by disagreeing on these matters.

But it does seem inappropriate (or, at the very least, confusing) to wave the concept of “free speech” around as a defense of ideas that others might criticize. As Mill stresses, Lefler and Smith being free to express their ideas does not automatically make those ideas correct — indeed, their free expression (on Mill’s view) is one of the best ways to recognize which one (if either) is actually false.

For clarity’s sake, it would be better for Moe, Calvin, and everyone to just say what they truly support and what positions they believe to be correct, rather than hiding behind the double-edged sword of “free speech.”

Freedom of Speech and the Self-Defense Argument

photograph of Alex Jones with megaphone reporting for InfoWars

As a philosopher, I especially value freedom of speech: the idea that everyone should be free to state their opinions and ideas, without fear of retaliation, censorship, or legal sanction — unless, of course, that speech incites violence. This is partly because I revel in odd, counterintuitive, and persuasive arguments that challenge my beliefs and assumptions. Here it appears freedom of speech norms are key to intellectual life: they allow disagreeing parties to express differing opinions without social or political reprisal. If those who disagree keep silent, then intellectual inquiry would stop — how could it not?

The British philosopher, John Stuart Mill, held something like this view, when he defended the instrumental (and personal) value of freedom of speech:

“He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion.”

Antiquated language aside, Mill is offering an intellectual reason in defense of freedom of speech: without this liberty, we couldn’t really have an intellectual discussion; there would be viewpoints we may disagree with that wouldn’t be expressed. How can I know I’m right in my political, moral, or religious views, if I don’t know why there are other folks who disagree with me? Notice too this argument applies to cultural and societal norms, and not just the state. If we’re against freedom of expression, as a society, it won’t matter that the state allows.

Despite intellectual reasons for freedom of speech norms, critics have offered compelling moral reasons against it: words can hurt, and hurt badly. Verbal abuse, by example, can leave lasting psychological scars; freedom of speech can, and often is, used as a cudgel against marginalized and minority groups in society. There’s a sense in which freedom of speech can marginalize, control, and even erase individuals and groups that society deems other: folks too different from the rest of society to have a point of view worth heeding. Or we can see how freedom of speech norms can be a permission slip for folks to discuss views antithetical to the moral standing of members of marginalized groups. As some critics of the logic of freedom of speech argue (discussing freedom of speech on campus; but the logic generalizes):

“This logic expects members of marginalized groups to debate their very humanity. As a queer faculty member, it means I am expected to engage in a discussion about the validity of my identity: whether it is real, whether it might be symptomatic of demonic possession or perhaps a mental illness. Students and faculty of color, similarly, are expected to debate the reality of their experiences and their right to equitable systems.”

The logic of this argument — call it the self-defense argument — is that it would be wrong to prop up freedom of speech norms when free speech can be used to question the validity of members of marginalized groups. When supporters of free speech point to the instrumental values of our freedom of speech — for, say, preserving rigorous intellectual discussion — they often leave off that words can do serious harm. And the reply, by freedom of speech supporters, that harmful speech should be met with more speech may not be convincing to someone who, day in and day out, has to hear, either explicitly or in a subtle way, that their rights and identity aren’t really a thing. Perhaps freedom of speech is good for rigorous debate, but only when parties to that discussion are on comparable social footing — a thing people in marginalized groups oftentimes lack.

However compelling the self-defense argument against freedom of speech norms is, it functions as a philosophical double-edged sword. The self-defense reasons one can offer against freedom of speech norms can be rejiggered to support them too. First though, consider an insight from the famous Chinese general, Sun Tzu, who observed the following about war:

“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near […] Even though you are competent, appear to be incompetent. Though effective, appear to be ineffective.”

How are deception and war related to freedom of speech? Banning or restricting speech, and especially speech from individuals and groups who use their power and influence to challenge the validity and identity of marginalized group members, forces such individuals to hide what they really think and believe, and perhaps only express their views in select company. And even if this mostly silences their oppressive speech, it has a nasty by-product: we have a far poorer idea of who holds repugnant and morally objectionable views, and what those views are, than we would if they were allowed to (largely) speak their minds without fear of reprisal.

It is likely good to know whether folks are prejudiced and bigoted, for no other reason than we can keep an eye on them. And that appeal to self-defense should appeal to everyone, especially folks most at risk from freedom of speech abuses. They have a right to know who among them has bigoted and close-minded views, rather than being in the dark about what their neighbors, co-workers, and whatnot actually believe about them. Learning this can be painful, of course, but so is not knowing whether moral objectionable beliefs are pervasive — just as we should prefer, for practical reasons, clumsy and recognizable Nazis over the charming and subtle ones, to illustrate with an extreme case. As the saying goes: ‘forewarned is forearmed.’

Mill’s Dilemma

image of crowd with empty circle in the middle

One of the most famous defenders of free speech, John Stuart Mill, argued against the silencing of unpopular opinion on the grounds that we would potentially miss out on true ideas and that we need to check our own fallibility. Contained in this reasoning is the idea that in the marketplace of ideas that truth would hopefully emerge. But that marketplace is evolving into several niche submarkets. The use of algorithms and the creation of filter bubbles means that we no longer share a common pool of accepted facts. The recent US election has revealed just how polarized the electorate is, and this raises a moral question about to what extent a democratic public is obligated to look outside of their bubbles.

Regardless of whether the current president concedes at this point, it is difficult to think that the conspiracy theories about the 2020 election will disappear, and this will have long-term ramifications for the country. What this means is that at least two sets of citizens will have very different factual understandings of the world, especially after January. The fake news being spread about the election is filling a demand for a particular version of events, and on the right this demand is now being met with news sources whose content is ever more divorced from the reporting that the rest of us get. For example, the backlash by Trump supporters over Fox News’ projected win for Biden has led many on the right to label the network as “too liberal” and to switch to alternatives who are more willing to reflect the reality that is desired rather than the reality that exists. Similarly, conservatives feeling that their views have been censored on Facebook or Twitter have been drifting towards new platforms which are tailor-made to reflect their beliefs and are rife with misinformation.

The long-term concern of course is that as different political perspectives confine themselves to their own apps, sites, and feeds, the filter bubble effect becomes more pronounced. The concerns that Mill had about censorship in the marketplace of ideas isn’t the problem. The problem is that the pluralistic marketplaces that have spawned, and the different sets of political worldviews that have been created, are becoming insular and isolated from one another and thus more unrecognizable to each other. This is a problem for several reasons. Many have already pointed out that it allows for misinformation to spread, but the issue is more complicated.

The political bubbles of information and the echo chamber effect are making it easier to escape that check on fallibilism for those all across the political spectrum. It also makes addressing real world problems like climate change and COVID-19 more complicated. As one nurse has said, people are literally using their last breaths proclaiming that COVID isn’t real as they die from the disease. When recently asked about the fact that President Trump received over 70 million votes in the election, former President Obama opined that the nation is clearly divided and that the worldview presented in rightwing media is powerful. He noted, “It’s very hard for our democracy to function if we are operating on completely different sets of facts.”

As many experts have testified, this split in worldview is not going away. The moral issue isn’t merely that so many people can believe falsehoods or that truths may be buried; it’s the way that “facts,” as understood within an epistemic bubble, are related to each other and how political problems get defined by those relations which all lead to incommensurability. The moral issue is thus practical: how does a society where everyone is free to create their own worldview based on their preferences and have their views echoed back to them function when we can’t recognize what the other side is talking about? As the election debates demonstrated, certain dog whistles or narratives will resonate to some and not be recognized by others. Even if we put facts, fact-checking, and truth aside, do we still have a moral obligation to look outside of our own bubble and understand what our political opponents are saying?

In a recent paper from Episteme on the subject, C Thi Nguyen argues that we need to distinguish between epistemic bubbles and echo chambers. In the former, information is left out because a consumer is only provided certain sources. For example, if I open links to certain kinds of articles in a news feed, an algorithm may begin to provide more articles just like it and exclude articles that I am less likely to open. Thus leading to an epistemic bubble. On the other hand, if I specifically avoid certain sources or exclude certain sources I am creating an echo chamber. As described, “Both are structures of exclusion—but epistemic bubbles exclude through omission, while echo chambers exclude by manipulating trust.” Breaking free from an echo chamber is far more difficult because it involves using distrust of non-members to epistemically discredit them.

Trust is obviously important. Attempts to undermine fake news outlets or engage in censorship have only seemed to inspire more distrust. Fox News tries to maintain journalistic integrity by projecting an election, but this breaks the trust of Fox News viewers who leave for another network which will reflect their wishes. Since Twitter tags misleading tweets, conservatives are opting for other means of sharing their views. It seems the more that the so-called mainstream media tries to combat disinformation spread, the more it creates distrust. Simply trying to correct misinformation will not work either. Studies of disinformation campaigns reveal just how difficult it is to correct because even once a false claim is corrected, it is often the false claim that is remembered.

So, what is the alternative? As mainstream media attempts to prevent the spread of misinformation on their own platforms, trust in those platforms declines. And those who are left watching mainstream media, even if they do want truth, lose a check on their own biases and perspectives. Do the rest of us have an obligation to look at Newsmax, Breitbart, or Parler just so we can see what epistemic framework the other side is coming from? It may not be good for the cause of truth, but it might be necessary for the cause of democracy and for eventually getting the country to recognize and respond to the same problems. It may be that the only way to rebuild the epistemic trust required to break free from our echo chambers is to engage with our adversaries rather than merely fact-check them. By preventing the marketplace of ideas from balkanizing, there may still be a cheerful hope that through the exchange of ideas truth will eventually emerge. On the other hand, it may only cause more disinformation to spread even easier. Mill’s dilemma is still our dilemma.

In Defense of Mill

collage of colorful speech bubbles

In recent years, commentators — particularly those who lean left — have become increasingly dubious about John Stuart Mill’s famous defense of an absolutist position on free speech. Last week, for instance, The New York Times published a long piece by Yale Law School professor Emily Bazelon in which she echoes a now-popular complaint about Mill: that his arguments are fundamentally over-optimistic about the likelihood that the better argument will win the day, or that “good ideas win.” In this column, I will argue that this complaint rests on a mistaken view of Mill.

Mill’s argument, briefly stated, is that no matter whether a given belief is true, false, or partly true, its assertion will be useful for discovering truth and maintaining knowledge of the truth, and therefore it should not be suppressed. True beliefs are usually suppressed because they are believed to be either false or harmful, but according to Mill, to suppress a belief on these grounds is to imply that one’s grasp of the truth or of what is harmful is infallible. Mill, an empiricist, believed that no human being has infallible access to the truth. Even if the belief is actually false, its assertion can generate debate, which will lead to greater understanding and ensure that truths do not lapse into “mere dogma.” Finally, if the belief is partially true, it should not be suppressed because it can be indispensable to discovering the “whole” truth.

Notice that Mill’s whole argument concerns the assertion of beliefs, or the communication of what the speaker genuinely takes to be true. The key assumption in Mill’s argument is thus not that the truth will win out in the rough and tumble of debate. This may well be true — at least, it may be true in the long run, when every participant is really engaging in debate, or the evaluation of truth claims. Rather, Mill is taking as given that a lot of the public discourse is aimed at communicating truth claims in good faith. The problem is that much of this discourse is not intended to inform others about what speakers actually believe. Much of the public discourse is propaganda — speech aimed at achieving some political outcome, rather than at communicating belief. As Bazelon points out, referring to the deluge of disinformation that currently swamps our national public conversation,

“The conspiracy theories, the lies, the distortions, the overwhelming amount of information, the anger encoded in it — these all serve to create chaos and confusion and make people, even nonpartisans, exhausted, skeptical and cynical about politics. The spewing of falsehoods isn’t meant to win any battle of ideas. Its goal is to prevent the actual battle from being fought, by causing us to simply give up.”

The purpose of disinformation propaganda is to overwhelm people with contradictory claims and ultimately to encourage their retreat into apolitical cynicism. Even where propagandists appear to be in the business of putting forward truth claims, this is always in bad faith: propagandists aren’t trying to express truth claims. 

Where does this leave Mill? Mill may have been mistaken in overlooking the pervasiveness of propaganda. However, his defense of free speech need not extend to propaganda. If Mill is concerned only with defending communicative acts that are aimed at expressing belief, then we have no reason to think that Mill needs to defend propaganda. Thus, a Millian defense of speech can distinguish between speech that is intended primarily to express a truth claim and speech that is intended primarily to effect some political outcome. While the former must be protected from suppression, the latter need not be, precisely because the latter is not aimed at, nor likely to produce, greater understanding.

Of course, this distinction might be difficult to draw in practice. Nevertheless, new policies recently rolled out by social media platforms appear to be aimed precisely at suppressing the spread of harmful propaganda. Twitter banned political ads a year ago, and last month Facebook restricted its Messenger app by preventing mass forwarding of private messages. Facebook’s Project P (P for propaganda) was an internal effort after the 2016 election to take down pages that spread Russian disinformation. Bazelon recommends pressuring social media platforms into changing their algorithms or identifying disinformation “super spreaders” and slowing the virality of their posts. Free speech absolutists might decry such measures as contrary to John Stuart Mill’s vision, but I have suggested that this might be a mistake.

Tom Cotton’s Op-Ed and the Aims of the Opinion Page

photograph of newspaper printing press in operation

On June 3, 2020, The New York Times ran an op-ed by Arkansas Senator Tom Cotton calling for the U.S. military to use an “overwhelming show of force to disperse, detain, and ultimately deter lawbreakers.” He was referring to the riots that broke out in reaction to George Floyd’s killing at the hands of Minneapolis police—riots that Cotton depicted as the work of “left-wing radicals” and “nihilist criminals.” The fallout over the piece led to the resignation of the paper’s opinion page editor, James Bennett, with The Times publicly conceding that Cotton’s piece should not have been published. This reversal, and Bennett’s ouster, has itself provoked criticism of The Times by commentators of various political persuasions. For the philosophically inclined, it provides an opportunity to consider the criteria editors should use in selecting the independent opinions that appear in their pages.

Should The New York Times have run Cotton’s op-ed? In order to answer this question, we need to think about the purpose of a newspaper opinion page, and the way that purpose helps realize important values. There is an obvious sense in which an opinion page can share certain features with a public forum: it may serve as a venue for the expression of a multitude of opinions by ordinary citizens as well as public figures. Public forums are valuable because they are spaces in which citizens can deliberate, debate, and voice their dissent concerning important political, social, and cultural issues. Such spaces help citizens make better political decisions and keep public officials accountable.

The public forum conception of the opinion page is not the only one a paper could adopt. For example, a newspaper could decide that its opinion page should speak with one voice, advancing a more-or-less coherent set of positions on matters political, social, and cultural. On this view, only op-eds that are consistent with the opinion page’s strong editorial line would be entitled to a place. For example, this appears to be The Wall Street Journal’s philosophy. Since we are dealing here with private companies and not government agencies, the choice is entirely at the owners’ discretion.

In addition, there is one important distinction between a public forum and a newspaper such as The New York Times. In the latter case, the very fact that the newspaper chooses to run an op-ed lends credence to the views expressed therein: it is an indication that these views are worth considering. One might reply that a view can be worth considering even if it is false and immoral. John Stuart Mill famously wrote in On Liberty that even well-argued falsehoods could aid us in our pursuit of knowledge, pushing us to defend our own views “fully, fearlessly, and frequently” and preventing them from lapsing into “dead dogma.” However, if we are to evaluate the permissibility of publishing an opinion partly on the basis of its tendency to promote knowledge, we must also register the fact that lending credence to false or immoral views can spread factual or moral ignorance.

In light of this consideration, it may be reasonable to adopt a modified conception of the opinion page, one according to which its function is as a sort of refined public forum—a forum in which certain opinions are excluded because they fail to meet certain minimal standards of factual accuracy, moral decency, and other considerations discussed below. Such a forum is still valuable because it promotes democratic deliberation and debate, but unlike traditional public forums in the United States, it also actively works to avoid spreading ignorance. And whereas on the unrefined public forum conception the default assumption is that opinions are worth publishing absent good reasons for their exclusion, on the refined public forum conception an opinion must meet certain criteria in order to qualify as worthy of publication.

Some criteria seem relatively uncontroversial. Since we reason better if our premises are clear and our arguments logically correct, opinion pieces should meet some minimal standards of clarity and cogency. Relevance is another criterion: op-eds should be about a topic of pressing or significant public concern about which there is a need for democratic deliberation and debate, rather than some extremely obscure topic.

The purpose of the opinion page also seems to suggest that editors should avoid printing op-eds that contain any factual errors, since democratic debate and deliberation are undermined when citizens reason from false premises. But more careful reflection suggests that because factual claims can themselves be the subject of reasonable public dispute, an opinion page can better help inform the public about such factual disagreements by allowing the disputants to make their cases on the page, even if doing so risks printing false claims. For example, in the run-up to the 2003 Iraq War, the question whether Iraq possessed WMD was a matter of reasonable debate given the information publicly available, and would have been an ideal subject for opinion pieces arguing both sides of the issue. By contrast, there is no reasonable debate to be had about the reality of the Holocaust. Thus, while there is good reason not to print op-eds containing factual claims that are clearly false, the purpose of the page is better served by giving airtime to reasonable controversies over matters of fact.

A similar point applies to controversial questions of value. On the one hand, it might be argued that democratic deliberation is hindered by false beliefs about what is good or what is right. However, in many cases matters of value are themselves the subject of reasonable public dispute; and in these cases, it is better to inform the public about the various positions being staked out on those questions and the arguments advocates are advancing for them, even at the risk of airing views that may ultimately be widely judged immoral. Twenty years ago, the morality of gay marriage was heatedly debated across the country by people of good will. At that time, it would have been appropriate to run opinion pieces arguing both sides of the issue. So, while there is good reason not to publish op-eds containing clearly indecent moral views, particularly if they do not meet the criterion of relevance, the purpose of the page is well-served by allowing reasonable debate about questions of value.

The goal of fostering informed democratic deliberation also suggests that particularly controversial views ought to be presented in a way that is best calculated to foster reasoned debate. This might involve, for example, a “point counterpoint” format in which op-eds arguing for opposing views are published side-by-side. Meg Greenfield, who edited The Washington Post’s editorial page for over 20 years, was known to employ this technique with respect to particularly controversial topics.

If we adopt the refined public forum conception of the opinion page and judge according to the criteria discussed above, Tom Cotton’s op-ed appears problematic in certain respects. It was reasonably clear and cogent—one cannot claim to be offended by its argument and simultaneously not understand what was being argued. It was certainly relevant, since it concerned events of pressing public concern and was written by a person who wields enormous power. It advanced some unsubstantiated factual claims, such as its claim about left-wing groups’ involvement in the rioting. However, it is possible that at the time it was published, the degree of involvement of these groups was still a matter of reasonable dispute.

Less clear is whether the values that Cotton espouses are a matter of reasonable dispute. In particular, there is the question whether we should take seriously the view that the U.S. military ought to use its enormous capacity for violence against those engaged in the destruction of property. One reason to do so is that this view seems to be shared by a substantial proportion of U.S. adults; this speaks to its relevance. However, given its controversial nature and the risk of lending credence to an immoral view, a different presentation of Cotton’s argument—perhaps in the form of a point counterpoint—would almost certainly have been a more ethically sound editorial decision.

Furthermore, Cotton’s rhetoric seems designed to intimidate. Specifically, Cotton recommends using “an overwhelming show of force” to deter “lawbreakers.” There is a disturbing ambiguity in that statement: are people engaged in civil disobedience included within the scope of “lawbreakers”? If Cotton’s piece can be reasonably interpreted as threatening violence against those engaged in civil disobedience, it could have a chilling effect upon open expressions of dissent, thus undermining democratic debate and deliberation. Surely, if an editor has good reason to think that an opinion piece is intended to silence others, or will have the effect of so doing to a significant degree, the refined public forum conception of the opinion page would tend to favor not running it in its current form.

A newspaper’s opinion page can, at its best, encourage the kind of frank, fair, and informed exchange of views that makes democracies function better. Yet editors have a responsibility to see that they do not spread ignorance by stamping clearly false or morally perverse opinions with their newspaper’s imprimatur. They also have an obligation to present controversial views in a way best calculated to encourage reasoned debate. For all of these reasons, the decision to publish Tom Cotton’s op-ed should be viewed as a challenging one, whether or not it is ultimately justified.

What’s the Story with Fake News?

Photograph of Donald Trump speaking into a microphone

Every day U.S. President Donald Trump calls “fake news” on particular stories or whole sections of the media that he doesn’t like. At the same time there has been a growing understanding, inside and outside the U.S., that “fake news”, that is to say fabricated news, has in recent years had an effect on democratic processes. There is of course a clear difference between these two uses of the term, but they come together in signifying a worrying development in the relations of public discourse to verifiable truth.

Taking the fabricated stories first – what might be called “real fake news” as opposed to Trump’s “fake fake news” (to which we shall return) – an inquiry concluded by the UK parliament in recent weeks that sheds further light on the connections between lies and disinformation, social media, and hindrance of transparent democratic processes makes sobering reading.

On July 24 the British House of Commons Digital, Culture, Media and Sport (DCMS) Committee released its report on ‘disinformation and fake news’. What began as a modest inquiry into recent developments and trends in digital media “delved increasingly into the political use of social media” and grew in scope to become the most detailed look yet to be published by a government body at the use of disinformation and fake news.

The report states that

“…without the knowledge of most politicians and election regulators across the world, not to mention the wider public, a small group of individuals and businesses had been influencing elections across different jurisdictions in recent years.”

Big Technology companies, especially social media companies like Facebook, gather information on users to create psychographic profiles which can be passed on (sold) to third parties and used to target advertising or fabricated news stories tailored to appeal to that individual’s beliefs, ideologies and prejudices in order to influence their behavior. This is a form of psychological manipulation in which “fake news” has been used with the aim of swaying election results. Indeed, the DCMS committee thinks it has helped sway the Brexit vote. Other research suggests it helped to elect Donald Trump in the 2016 U.S. presidential Election.

The report finds that

“…urgent action needs to be taken by the Government and other regulatory agencies to build resilience against misinformation and disinformation into our democratic system. Our democracy is at risk, and now is the time to act, to protect our shared values and the integrity of our democratic institutions.”

It’s not easy to define what “fake news” is. The term is broad enough to include lies, misinformation, conspiracy theories, satire, rumour or stories that are simply wrong. All these categories of falsehood have been around a long time and may not necessarily be malicious. The epistemic assumption that the problem with fake or misleading news is that it is untrue is not always warranted.

Given that information can be mistaken yet believed and shared in good faith, an evaluation of the epistemic failings of false information should perhaps be judged on criteria that include the function or intention of the falsehood and also what is at stake for the intended recipient as well as the purveyor of misinformation. In other words, the definition of fake news should include an understanding of its being maliciously produced with the intention to mislead people for a particular end. That is substantively different from dissenting opinions or information that is wrong, if disseminated or published in good faith.

The DCMS report recommended dropping the term “fake news” altogether and adopting the terms ‘misinformation’ and/or ‘disinformation’. A reason for this recommendation is that “the term has taken on a variety of meanings, including a description of any statement that is not liked or agreed with by the reader.”

The ethical dimensions of fake news seem relatively uncomplicated. Though it is sometimes possible to make a moral case for lying – perhaps to protect someone from harm, for fake news there is no such case to be made, and there is little doubt that its propagators have no such reasoning in mind. We don’t in general want to be lied to because we value truth as a good in itself; we generally feel it is better for us to know the truth, even if it is painful, than not to know it.

The thorny ethical problems arise around the question of what, if anything, fake news has to do with freedom of speech and freedom of press when calls for regulation are on the table. One of the greatest justifications for free speech was put forward by the liberal philosopher John Stuart Mill. Mill thought that suppression of error (by a government) could never rule out accidental (or even deliberate) suppression of truth because we are not epistemically infallible. The history of knowledge is, after all, a history of having very often to correct grave and, sometimes, ludicrous error. Mill convincingly argued that unrestricted discussion allowed truth to flourish. He thought that a “clearer perception and livelier impression of truth [is] produced by its collision with error.”

However, on closer consideration, free speech may not really be what is at stake. Mill’s defense of free press (free opinion) ends where ‘in good faith’ ends, and fake news, as wielded by partisan groups on platforms like Facebook, is certainly not in good faith. Mill’s defense of free and open discussion does not include fake news and deliberate disinformation, which is detrimental to the kind of open discussion Mill had in mind, because rather than promote constructive conversation it is designed to shut conversation down.

Freedoms are always mitigated by harms: my freedom to swing my fist around ends where your nose begins. And the DCMS report is one of numerous recent findings that show the harms of fake news. Even if we grant that free speech doesn’t quite mean freedom to lie through one’s teeth (and press / media doesn’t quite mean Facebook) it still is not easy to come up with a regulatory solution. For one thing, regulations can themselves be open to abuse by governments – which is precisely the kind of thing Mill was at pains to prevent. The term “fake news” has already become a tool for political oppression in Egypt where “spreading false news” has been criminalized in a law under which dissidents and critics of the regime can be, and have already been, prosecuted.

Also, as we grapple with the harms caused by deliberate, targeted misinformation, the freedom of expression question dogs the discussion because social media is, by design, not a tightly controlled conversational space. It can be one of the internet’s great benefits that it has a higher degree of freedom than traditional media — even if that means a higher degree of error. Yet it is clear from the DCMS report that social media “platforms” such as Facebook are culpable, if not legally (since Facebook is at present responsible for the moderation of its own content), then ethically. The company failed to prevent use of its platform for targeted and malicious campaigns of misinformation, and failed to act once it was exposed.

Damian Collins, the Conservative MP for Folkestone and chair of the DCMS committee, spoke of “Facebook’s complete lack of moral responsibility”; the “disingenuous” responses from its executives, and its determination to “time and again… avoid answering… questions to the point of obfuscation”. Given that attention-extraction companies like Facebook are resistant to change because it is against their business model, democratic governments and regulators will have to consider what measures can be taken to mitigate the threats posed by social media in its role in targeted dissemination of misinformation and fake news.

At stake in the problem of fake news is the kind of conversational space necessary for a healthy functioning society. Yet the ‘”fake fake news” of President Donald Trump is arguably more insidious, and perhaps even harder to inoculate against. In what can only be described as an Orwellian twist in the story of fake news, Donald Trump throws the term at the mainstream media even as they report something much more answerable to epistemic standards of truth and fact than the fabricated stories propagated through social media or the transparent lies Trump himself so effortlessly dispenses.

Politicians have long had a reputation for demagoguery and spin, but Trump’s capacity to lie in the face of manifest reality (inauguration crowd size just for one obvious example) and to somehow ‘get away with it’ (at least to his supporters) is extraordinary, and signals a deep fissure in the relation between truth, trust, and civic discourse.

To paraphrase Australian philosopher Raimond Gaita: to deride the serious press as peddling fake news, to deride expertise that proves what justifiably can count as knowledge, is to undermine the conceptual and epistemic space that makes conversations between citizens possible.

J. S. Mill’s vision for a society in which, despite and sometimes through error, truth can be discovered, and where it has an epistemic priority in establishing trust as a foundation for a liberal, democratic life is lost in the contempt for knowledge and truth that is captured in the idiom of this “post-truth” era.

Both senses in which “fake news” is now pervading our civic conversational space threaten public discourse by endangering the very possibility of truth and fact being able to guide, ground and check public discourse. Big Technology and social media have no small part to play in these ills.

An epistemic erosion is underway in public discourse which undermines the conversational space – that space that Mill thought was so important for the functioning of a free society – which allows citizens to grapple with self-understanding and to progress towards more just and better forms of civic life.

What Does John Stuart Mill Have to Say about the Hijab?

The European Union’s highest court has recently ruled that companies are allowed to ban hijabs in their workplaces. It is a response to two cases: Samora Achbita, a woman working for a company in Belgium, was fired over her refusal to take off her veil at work; Asma Bougnani was likewise fired by a company in France, for the same reasons.

This is yet another battle in the long hijab wars that have been fought in Europe over the last 20 years. As usual, there is a political aligning on this issue: the far right welcomes such bans, the multicultural left vehemently opposes them, and the rest of the parties are either undecided, or simply confused, about their stand.

Continue reading “What Does John Stuart Mill Have to Say about the Hijab?”

Free Speech and Passport Fraud: On CNN’s Ban from Venezuela

Progressives in the United States are decidedly against the policies and ideology of Donald Trump. And, predictably, when President Trump has displayed aggressiveness towards CNN and other media outlets, these progressives uphold the values of free speech. Yet, last month, CNN was expelled from Venezuela, a country whose socialist regime has been lauded by the likes of Noam Chomsky, Oliver Stone, Sean Penn, and other visible figures of the left. There has been little (if any) uproar over this. This is at best inconsistent, and at worst hypocritical.

Continue reading “Free Speech and Passport Fraud: On CNN’s Ban from Venezuela”

Freedom and the 2016 Electoral Season

‘Tis the season for politics, once again, in the United States of America. And while some surprising new topics, like the size of candidates’ hands, have cropped up in this cycle, some of the mainstays of American political rhetoric are also at the rendez-vous.

Take Donald Trump, for instance.

In January, one of his campaign rallies featured the following performance:


While it features somewhat dated nationalist lyrics (including verses like “Come on boys, take them down!”), slightly updated for promoting Mr. Trump’s bid in the 2016 presidential contest, it also highlights a theme that is about as central to American political rhetoric as apple pie is to American cooking: freedom.

Whether freedom has been invoked as an empty rhetorical trope, as in this case, or whether it has been used more substantitvely, it has so completely permeated electoral discourse as to become inescapable.

Whether they have talked about government regulation, trade, national security, tax reform, education, abortion, or immigration, freedom has been Republican candidates’ preferred frame of reference.

Meanwhile, on the left of the political spectrum, Hillary Clinton and Bernie Sanders have been quite as single-minded. While Clinton has spent a great deal of her time trying to square away her commitments to free trade and to an equalitarian progressive politics, Sanders has explained his commitment to democratic socialism as meaning “that we must create a vibrant democracy based on the principle of one person one vote.” “True freedom” according to Sanders, “does not occur without economic security. People are not free, they are not truly free, when they are unable to feed their family.”

And yet, these invocations are largely based on outdated conceptions of what freedom is. The idea at the back of Sanders’ viewpoint, that economic independence is the necessary precondition for democratic citizenship harks back to Thomas Jefferson’s glorification of the yeoman farmer, as historian Eric Foner was already noting in his book, The History of American Freedom. And as sociologists have been observing since the 1950s, such an ideal of economic independence is woefully inadequate to the corporate economy in which we live.

But it is just as true that the thesis that deregulation of international trade or of the labor market will result in greater individual freedom is based on the idea, first defended by classical liberals like John Stuart Mill, that government power threatens individual liberty. Mill’s disciples in the twentieth century, intellectuals like Friedrich von Hayek and Milton Friedman, argued that the crux of liberal freedom consists in the absence of coercion of the individual, either by private monopolies or by government power, so that the smaller the size of the government is and the less active it is in citizens’ lives, the greater will their freedom be.

But as early as the 1960s, the American social psychologist Stanley Milgram actually found, in a series of now famous experiments, that most people do not need to be coerced into doing things they don’t want to do, including engaging in actions which they are convinced will most likely result in the death of an innocent person: they will do these things of their own free will – a situation that suggests that “free will” and freedom may not be the same things after all.

In fact, a growing body of evidence has been produced in the human sciences over the past 40 years that suggests that the notion of a free-willing individual, who can make decisions independently of social and cultural contexts is a figment of our imagination. What this research reveals is that it is not the absence of context that enables individuals to act freely (whether it be the absence of a monopoly or the absence of a state bureaucracy), but on the contrary the presence of one.

This scientific research reveals several very surprising things about human nature that directly contradict the vision of human beings as rational, egoistic individuals, driven by an unquenchable lust for pleasure, money, or power, which we inherited from classical liberalism. The most recent of the great apes, it turns out, is a hypersocial being, whose subjective experience of the world is profoundly shaped by its empathetic openness to others, an openness that is not premised on any sort of fundamental or primitive goodness, but rather on the evolutionary mechanics of communication. Social psychologists, for instance, have discovered that in order to understand what someone else is saying we have to imitate the motion of their vocal chords (though in a much reduced fashion). We have to, in other words, become them. Neuroscientists have also found a specific type of neuron which corresponds to this process in the brain itself, the so-called “mirror neuron.”

Our identities, and therefore our desires, are profoundly affected by our cultural, social, and political contexts. To be free thus necessitates participating in the formation of the communicational contexts that affects and form us all. Freedom requires not only the freedom of expression cherished by classical liberals, but a certain freedom of connection – the power to shape the contexts in which this free expression happens. The freedom of choice advocated by classical liberals and their twentieth century followers confuses the fruit of freedom, the will, with its root. Likewise, those social liberals and socialists who emphasize economic independence while ignoring the other complex dimensions and processes involved in the creation of a free personality seem to be missing a significant component of the reality of the process of freedom.

This conception of freedom, if we examine it closely, suggests that democracy is not just a matter of elections or of constitutional rights (though it undoubtedly includes those concerns). Nor is the issue that of how “big” government bureaucracy will be. More fundamentally, political freedom consists in individuals and communities having the power to mutually affect each other and form each other. Democracy, understood from this perspective becomes a way of life rather than a formal mode of government, one that has consequences not only for the way in which ownership of the media of mass communication is organized for instance (a frequent complaint of the Sanders campaign is that this ownership structure is creating a bias in its coverage of politics), but also for every aspect of our lives, from the workplace to the bedroom, its fundamental principle being “equality of participation.” The aim of a “politics of freedom” in this context would be neither decreased regulation of the economy or increased government intervention but the creation of increased opportunities for participation by all members of society in both economic and political decision-making, regardless of their wealth or income level. Beyond the public funding of elections, one might imagine this agenda including decreased mediation of the mechanisms of political representation. Currently, for instance, the average ratio of representatives to represented in the US House of Representatives is something like 1: 290,000, making it extremely difficult for any but the most powerful interests to gain a hearing, regardless of the way elections are funded. And yet, there seem to be few technical impediments to cutting that ratio in half for instance. Any number of other reforms could be proposed that would enable greater citizen participation in the polity, from making congressional office-holders into recallable delegates in order to increase accountability, to instituting worker and consumer co-management councils in private corporations, legally entitled to raise concerns about the social and environmental consequences of business policies (corporations being legal entities to begin with, there seems to be little weight in the argument that this would be “undue government interference”).

Now, wouldn’t the transformation of everyday life from the standpoint of such a principle of “equality of participation” be the basis for a genuine “political revolution”?