Freedom of expression is looking less and less
like a settled issue. Challenges to it have lately
arisen from the right, from the left, from Muslim
perspectives, and even in the name of protecting
children online. These challenges seem to share an
underlying concern, namely that we must balance
free expression against the psychic hurt that some
expressions will provoke. Often these critiques are
couched in language that draws or appears to
draw, on the law and economics movement. Yet
the cost-benefit analyses advanced to support
restrictions on expression are incomplete, subjective,
and self-contradictory.
Several examples help to illustrate this point,
including flag-desecration laws, hate-speech laws in
the United Kingdom and Canada, U.S. college and
university speech codes, the Cairo Declaration on
Human Rights in Islam, and the Megan Meier
Cyberbullying Prevention Act, currently before the
House Judiciary Subcommittee on Crime,
Terrorism, and Homeland Security. Although seemingly
unrelated, these measures rely on a common
assumption, namely that governments should provide
emotional well-being to their citizens, even at
the expense of free expression. This assumption discounts
the emotional well-being of other citizens,
neglects countervailing social considerations, and
hands arbitrary power to governments.
The result is not more happiness, but a race to
the bottom, in which aggrieved groups compete
endlessly with one another for a slice of government
power. Philosopher Robert Nozick once observed
that utilitarianism is hard-pressed to banish what he
termed utility monsters—that is, individuals who take
inordinate satisfaction from acts that displease others.
Arguing about who hurt whose feelings worse,
and about who needs more soothing than whom,
seems designed to discover—or create—utility monsters.
We must not allow this to happen.
Instead, liberal governments have traditionally
relied on a particular bargain, in which freedom of
expression is maintained for all, and in which
emotional satisfaction is a private pursuit, not a
public guarantee. This bargain can extend equally
to all people, and it forms the basis for an enduring
and diverse society, one in which differences
may be aired without fear of reprisal. Although
world cultures increasingly mix with one another,
and although our powers of expression are greater
than ever before, these are not sound reasons to
abandon the liberal bargain. Restrictions on free
expression do not make societies happier or more
tolerant, but instead make them more fractious
and censorious.
Freedom of expression is looking less and less
like a settled issue. Challenges to it have lately
arisen from the right, from the left, from Muslim
perspectives, and even in the name of protecting
children online. These challenges seem to share an
underlying concern, namely that we must balance
free expression against the psychic hurt that some
expressions will provoke. Often these critiques are
couched in language that draws or appears to
draw, on the law and economics movement. Yet
the cost-benefit analyses advanced to support
restrictions on expression are incomplete, subjective,
and self-contradictory.
Several examples help to illustrate this point,
including flag-desecration laws, hate-speech laws in
the United Kingdom and Canada, U.S. college and
university speech codes, the Cairo Declaration on
Human Rights in Islam, and the Megan Meier
Cyberbullying Prevention Act, currently before the
House Judiciary Subcommittee on Crime,
Terrorism, and Homeland Security. Although seemingly
unrelated, these measures rely on a common
assumption, namely that governments should provide
emotional well-being to their citizens, even at
the expense of free expression. This assumption discounts
the emotional well-being of other citizens,
neglects countervailing social considerations, and
hands arbitrary power to governments.
The result is not more happiness, but a race to
the bottom, in which aggrieved groups compete
endlessly with one another for a slice of government
power. Philosopher Robert Nozick once observed
that utilitarianism is hard-pressed to banish what he
termed utility monsters—that is, individuals who take
inordinate satisfaction from acts that displease others.
Arguing about who hurt whose feelings worse,
and about who needs more soothing than whom,
seems designed to discover—or create—utility monsters.
We must not allow this to happen.
Instead, liberal governments have traditionally
relied on a particular bargain, in which freedom of
expression is maintained for all, and in which
emotional satisfaction is a private pursuit, not a
public guarantee. This bargain can extend equally
to all people, and it forms the basis for an enduring
and diverse society, one in which differences
may be aired without fear of reprisal. Although
world cultures increasingly mix with one another,
and although our powers of expression are greater
than ever before, these are not sound reasons to
abandon the liberal bargain. Restrictions on free
expression do not make societies happier or more
tolerant, but instead make them more fractious
and censorious.
Jason Kuznicki is a research fellow at the Cato Institute and the managing editor of Cato Unbound, as well as an assistant editor of the Encyclopedia of Libertarianism. He earned a Ph.D. in history from Johns Hopkins University.
