No Straw MenEnlightened discourse proscribes arguments that are weak or imaginary, like straw, set up only to be confuted summarily.

Marx, Mill, and Rand on Free Speech

Is John Stuart Mill’s understanding and defense of free speech appropriate for a democracy?

The starting point of any political system is how the people limit the power of the state. In On Liberty, the English political theorist, John Stuart Mill, seemingly rejects most limits in favor of individual sovereignty. Yet while he appreciates the preciousness of laissez-faire, his defense of it undervalues democracy. For, ultimately, Mill grounds his properly individualist ideas in a collectivist rationalization.

The word “democracy� has today become an ambiguous, feel-good catchall for liberty. This confusion obscures the deeper truth that there are two rival conceptions of “one man, one vote.� On one hand, individualists limit democracy to a procedural role, mainly to elections by which citizens vote into office their political representatives. In this view, as philosopher David Kelley observes, democracy is a way to decide how, not what, government should do—which is to protect exclusively individual rights, which are inalienable.[1] Collectivists, however, see democracy as promoting the “public interest.� In this view, majoritarian decision-making smoothes out the peaks and valleys of individual rights.

To ascertain which conception is right, imagine you are a congressman.[2] On Monday, lobbyist A accosts you for import tariffs to protect the jobs of workers. On Tuesday, lobbyist B demands no tariffs to give buyers lower prices. On Wednesday, lobbyist C insists on subsidies to compensate the underproduction of farmers. On Thursday, lobbyist D wants you to lower taxes for nonfarmers.

How then do you decide what to do? Which lobbyist represents the “public�? Ultimately, there is no clear and distinct way to tell; any lobbyist, of any industry, on any issue, can reasonably claim the title of the Public. In dismay, you realize that collectivist democracy leads to arbitrary power, in which you must sacrifice the minority to the majority.

On the other hand, an individualist democracy curtails such corruption. For the principle that the rights of the individual are inalienable means, as the writer Onkar Ghate observes, that “no invocation of the ‘public interest’ can justify their abrogation�;[3] the state can interfere only when rights are violated. Thus, an individualist democracy makes good consistently on Mill’s maxim, “Over himself, over his own body and mind, the individual is sovereign� (611).

And yet, though usually placed in the individualist democracy camp, John Stuart Mill is ultimately a collectivist. To be sure, against today’s political theorists, he stands with such staunch individualists as Robert Nozick and Ayn Rand. But Mill mixes his many libertarian tendencies with statist tenets. Specifically, he holds that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others� (610).[4] What qualifies as “harm� depends on whether the given item furthers the “permanent interests of man as a progressive being� (611).

This slippery slope threshold lends itself to conflicting interpretations. For instance, whose “interests� take precedence if Paul, as a theater proprietor, values his property rights and Peter, his customer, values the security of knowing it is illegal to shout “fire� maliciously in a theater? Whose “interests� take precedence if Jane, as a restauranteur, values her property rights and Janet, her customer, values the safety of knowing that since it is illegal to smoke in New York City bars, she will not inhale second hand smoke in one?[5] Using Mill’s harm principle—namely, the vagueness of the terms therein—one can argue either way; ascertaining who is more harmed or less harmed is a proposition pregnant with paradoxes.

Here, then, is the rub. As a utilitarian, Mill might just as well be a statist; both theories reject the principle of individual rights. But to be free, man requires rights, which explicitly codify and protect what actions man should be free to pursue in a social context. Unlike Mill’s harm principle, rights do not recognize an action or thought’s consequences (“permanent interests�), but distinguish only between coercive action, like theft and arson, and voluntary action, like gambling and prostitution (662). In this way, free speech—free because it is voluntary—is absolute insofar as I exercise it on my property or the property of others with their permission.[6]

Yet many argue that although we may agree maliciously shouting “fire� pertains only to whose property it occurs on, some say that shouting “fire� constitutes action, while others say it is speech. After all, democracy entwines procedure with substance; what we do necessarily embeds the values of how we do it. Additionally, that rights are relatively clear-cut does not guarantee that people will apply them as such. As Mill recognizes, rights are “abstract� statements, which we must fit to the specifics of complex, varying, concrete cases (611). This process is not automatic; human error and reasonable disagreement are possible.

Nonetheless, as philosopher Harry Binswanger explains, “A legal code must have not only the impersonal absolutism of a law of nature, but also the clarity and precision of a properly drafted contract.�[7] The best such code—the one that minimizes paradoxes and maximizes uniformity and specificity—confines law to the protection of individual rights. Under such a system, legislators have no say over whether rights should be violated, but only how to protect them; rights are not subject to vote, but people can, for instance, democratically vote to determine speech/action distinctions. Similarly, judges would decide only whether rights were violated and by whom; “compelling state interests� would be extraneous.

But many ask how rights are any less knotty than the principles of “harm� or “interests�? In constitutional parlance, rights are compossible; that is, they never conflict, since mine start where yours end. Thus, there can be no “right� not to encounter potentially fatal, deliberately false, actionable information (“fire�), since this prohibition necessarily censors, via the force of law, the would-be prankster. Any alleged right that entails coercion, which necessitates violating the rights of another, is not and cannot be a right. If Peter’s right to life entails, say, a right to the fruits of Paul’s labor, as by banning “fire� in Paul’s theater, then Paul thereby ceases to possess a right to property. Instead, the state grants him that privilege—which it can revoke whenever it conflicts with the “public interest.� When one begins making conditions, reservations and exceptions, as Mill does, one admits that something supersedes man’s rights—which may violate them at its discretion.

Therefore, replacing “harm� with “coercion� as the criterion for state intervention makes resolving classic free speech issues relatively easy. The new criterion shifts the debate from nonessentials (interests) to essentials (rights), so that no longer would we need to dispute endless consequences, intended and unintended, but only whose rights are allegedly violated. Thus, the rightness of shouting “fire� in a crowded theater would depend, not on a potential stampede, but only on who owns the theater; if it is mine, only I may abridge free speech therein.[8]

Still, many argue that such a system privileges property rights over “human� rights. After all, someone could conceivably die in a stampede in my theater because I permit my customers to shout “fire� on a whim. Why should my selfish right to my property trump my customer’s right to his life? A dead man is not a free man.

This hypothetical is, of course, stylized and hyperbolic; its occurrence would be extremely rare. For only a suicidal businessman would allow his customers to shout “fire� maliciously in his theater; it is in one’s self-interest to assure one’s customers a safe milieu. Nonetheless, supposing I permit my customers to shout “fire� on a whim, and one consequently dies in a stampede, the deceased’s heirs, or in their absence the state, may rightfully sue me via tort law for, say, misrepresenting the safety of my establishment. Moreover, though the deceased did not consent to die in my theater, he did voluntarily consent to my rules—which as a private company, I have every right to set my way and he had every right to disagree with by not patronizing my business.

Furthermore, either a principle is watertight, or it is an expedient that others may later just as arbitrarily foist on you. Indeed, if a majority considers such noncoercive actions as meriting the coercive power of the state, what then will protect any atheist, homosexual, prostitute, gambler, smoker or suicide from fines, imprisonment or death when any majority regards these sins as criminal? Finally, property rights are in fact basic “human� rights, though not in the sense of economic entitlements. Rather, as Ayn Rand explained: “Man has to work and produce in order to support his life. He has to support his life by his own effort and by the guidance of his own mind. If he cannot dispose of the product of his effort, he cannot dispose of his effort; if he cannot dispose of his effort, he cannot dispose of his life. Without property rights, no other rights can be practiced�;[9] “no rights can exist without the right to translate one’s rights into reality . . . The doctrine that ‘human rights’ are superior to ‘property rights’ simply means that some human beings have the right to make property out of others.�[10]

For Mill, as for me, the “danger which threatens human nature is not the excess, but the deficiency,� of individuality (639). For “only the cultivation of individuality . . . can produce[] well developed human beings� (641), such that man ceases to be man when he “ceases to possess individuality� (646). Therefore, “whatever crushes individuality is despotism� (641).

Yet Mill’s harm principle, by resting on the public interest doctrine, constitutes such despotism. For to practice individualism one needs the freedom to be an individual—come what will to the so-called public, which effectively subordinates individuals to the collective, minorities to the majority. Therefore, had he valued true individualist democracy, John Stuart Mill should have advocated the principle of individual rights. Had he done this, he would have upheld a political system that makes good consistently on his maxim that “all restraint, qua restraint, is an evil� (660).

Footnotes

[1] David Kelley, “The Corruption of Democracy,� Navigator, April 2001.

[2] Edwin A. Locke, “How to Achieve Real Campaign Finance Reform,� Capitalism Magazine, October 11, 1999.

[3] Onkar Ghate, “Campaign Finance Reform Attacks Victims of Government Corruption,� Capitalism Magazine, December 17, 2003.

[4] David Wooton, Modern Political Thought: Readings from Machiavelli to Nietzsche (Indianapolis: Hackett, 1996). All parenthetical page numbers refer to this text.

[5] Similarly: Whose “interests� take precedence if Peter seeks state recognition of his homosexual marriage, and Paul believes that gay marriage degrades traditional mores? Whose “interests� take precedence if I want to smoke a joint to relieve chronic pain, and you want to prohibit marijuana because it leads users toward criminality?

[6] A system of individual rights precludes so-called public property.

[7] Harry Binswanger, “What Is Objective Law?� Intellectual Activist, January 1992. p. 11.

[8] Civil rights, like freedom of speech, of passage and of association, are contractually stipulated; they are derivates of fundamental rights, and, as such, may be abridged. Fundamental rights—the right to life, liberty, property, and the pursuit of happiness—may not be abridged, since they are not contractually stipulated but inalienable.

[9] Ayn Rand, “What Is Capitalism?,� in Ayn Rand, Capitalism: The Unknown Ideal.

[10] Ayn Rand, Atlas Shrugged.

Unpublished Notes

The U.S. Supreme Court declared in Schenk v. United States (1919) that when speech poses a “clear and present danger� to “society,� the state is justified in curtailing it.

The problem with Schenk is that it bases rights-curtailment strictly on a social standard when it should have focused on who owns the property—on which the exercise of free speech depends. The problem largely arises because our mixed economy allows the communist contradiction of “public� property.

The right to freedom of speech depends on where one exercises it, on the extent to which the owner of the property in which one is speaking wishes to indulge the speaker. For example, if I own a cineplex, I can properly abridge free speech by stipulating that my patrons cannot maliciously shout “fire� in my theaters. My patrons, however, do not have an a priori right to free speech, since when they enter my cineplex, they contract, implicitly, to view a movie, rather than cause chaos.

Thus, civil rights, like freedom of speech and of passage, are contractually stipulated; they are derivates of fundamental rights and, as such, may be abridged. Fundamental rights—the rights to life, liberty, property, and the pursuit of happiness—may not be abridged, since they are not contractually stipulated but inalienable.

We should therefore oppose “public� ownership of television channels, the press and radio, since by owning these means, the government then prohibits, restricts, or otherwise censors what people can express through these media. Observe what results when taxpayers fund art. Art becomes a political football and everybody fights over which art a public museum should display.

By contrast, the great virtue of private property is that if I fund and privately display my own “indecent,� “offensive,� or “pornographic� art, then the government has no right to censor it. Indeed, all property as privately owned precludes the government’s abridgement of free speech.

***

President Bush wants to increase the budget of the National Endowment for the Arts. But gov-ernment involvement in the arts only politicizes it. Art becomes a political football, thrown around by whichever politician then in office. Remember that controversy when Mayor Giuliani refused to fund the religious painting with dung?