Randal Marlin

by Propaganda

  even though it had become a social problem in some areas of British rule during his

  lifetime. He is at odds on this point with his critic, Fitzjames Stephen, who deplores

  the imposition of free trade in such drugs on China, correctly predicting the animos-

  ity against British rule that the callous implementation of this policy engendered.14

  Mill, in fact, makes some statements that can be marshalled against his free trade posi-

  tion regarding drugs. He specifically defends the legal non-recognition of contracts

  by which a person might sell himself or herself into slavery because “by selling himself

  for a slave, he abdicates his liberty.... The principle of freedom cannot require that

  he should be free not to be free” (JSM 125). Why not import some of this theory

  into the treatment of highly addictive drugs? The addict also loses freedom regarding

  the future craving for the addictive substance. This should have some implication for

  advertising of such addictive substances.

  In fact, Mill considers very carefully the question of counselling people to do

  things that society judges is wrong and comes up with opposing views. He nei-

  ther favours permitting the advertising of harmful products nor prohibiting such

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  advertising. He takes the example of pimping, presenting the dilemma in the following way. On the one hand, giving advice and inducements to others is a social act

  and affects others. On the other hand, if people must be allowed to engage in what

  concerns themselves only, to act as seems best, why should they not also be free to seek

  out the advice of others? “Whatever it is permitted to do, it must be permitted to advise

  to do” (JSM 120, italics added).

  Having said that, though, Mill makes an exception for commercially motivated

  advice. The question, he says, is “doubtful only when the instigator derives a personal

  benefit from his advice, when he makes it his occupation, for subsistence or pecuni-

  ary gain, to promote what society and the State consider to be an evil.” Since Mill

  believes that consensual prostitution should not be outlawed, the italicized principle

  quoted above should lead him to accept the advertising of such services. But he is in

  two minds about whether people should be allowed to induce others to engage in

  such activity. He considers an argument for denying such freedom: the state or the

  public “cannot be acting wrongly in endeavouring to exclude the influence of solicita-

  tions which are not disinterested, of instigators who cannot possibly be impartial—

  who have a direct personal interest on one side, and that side the one which the State

  believes to be wrong, and who confessedly promote it for personal objects only” (JSM

  121). There is nothing lost, according to this argument, by having people make up

  their minds free from inducements by others. Even if some people will continue to

  engage in the socially disapproved behaviour, others will be dissuaded by the element

  of secrecy involved, and a good effect will have been achieved.

  Mill admits that there is a moral anomaly here, according to which the principle

  activity—fornication or gambling—would be legal, but the accessory behaviour of the

  pimp or gambling-house keeper would be punishable offences. He does not resolve

  this anomaly either way. He puts the case on the “exact boundary line” between the

  principle classifying inducement as a social act needing control and the principle of

  freedom for individuals to seek out whatever advice they wish.

  The basis for Mill’s backtracking from the full application of the liberty principle

  is tied to the argument from truth. As long as extraneous motives, such as profit, enter

  into discourse, one cannot expect that communications will have the truth as a pri-

  mary object, any more than “product placements” built into the scripts of movies are

  likely to enhance their artistic merit. For some people, all commercial speech should

  be excluded from constitutional protection, but while such a view is attractive when

  some forms of advertising are contemplated, it has the drawback of allowing the pro-

  hibition of the use of all but some designated language in all advertising. This in turn

  means acceptance of a form of linguistic tyranny. Whether the Quebec government’s

  restrictions on the use of the English language in advertising are justifiable or not is

  a debated matter, but the idea that the minority should have no rights whatever in

  such matters of expression does not seem right to many people on both sides of the

  linguistic divide.

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  Assuming the considerations Mill adduces to be evenly balanced, further arguments ought to be able to tip the scales in one direction or another. As earlier men-

  tioned, the freedom-threatening nature of addictive drugs ought to weigh on the

  side of permitting government restraints on advertising them. The fact that tobacco

  advertisements are so often targeted at youth (under 18-year-olds) is another factor.

  Moreover, there is the consideration that much tobacco advertising, as we have seen,

  is misleading.

  Mill’s Critics

  Mill has been criticized by libertarians, some of whom believe that he is too much of

  an instrumentalist in defending free speech on the basis of the goods that flow from

  it. They feel that free speech should be seen as constitutive of a good life and of demo-

  cratic society. It is not that some good will come of it, it is that part of what it means

  to have a democratic society is that free speech is protected.

  Mill has also been criticized by socialists (and others) on the grounds that the

  harms resulting from his hands-off approach to communications are greater than those

  that would follow from more restraint, particularly in the area of, for example, the

  potential for violence resulting from racist speech. Conservatives are more likely to

  think of the need for controls on pornography or seditious behaviour, but they, too,

  reject what they see as Mill’s hands-off approach to interfering with free speech.

  James Fitzjames Stephen

  Fitzjames Stephen (1829–94, and so-named to distinguish him from his eminent

  father, Sir James Stephen) provides a booklength critique of Mill’s essay in his Liberty, Equality, Fraternity. Although Fitzjames Stephen once stood as a candidate for the

  Liberal Party, his thinking was generally conservative, and he resisted the progressive

  side of Mill’s thinking. From 1869, he lived for over two years in India where, as a legal

  member of the Law Commission, he was charged among other things with providing

  codified bodies of law. He was fully attuned to questions of morality and law, having

  to adapt the thinking of a Christian-based society to something that would result in

  a workable system of law for Hindus, Muslims, and others. What bothers Fitzjames

  Stephen about Mill’s principles is not the end result, since he more or less agrees with

  the extent of freedom allowed as it pertained to India. Rather, he rejects the univer-

  salist language in which Mill expresses himself. Fitzjames Stephen thinks th
at free-

  doms that are suitable in one social and political environment may not be suitable to

  another. He also feels that certain key distinctions in Mill needed clarification.

  One such distinction is that between actions affecting ourselves alone and

  those that also affect others. Self-protection can be construed broadly or narrowly,

  Fitzjames Stephen writes. Revolutions are a clear case in which actions taken by

  one group of people, to satisfy their own interests, have an impact on everyone else

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  as well. Human conduct is guided by innumerable influences that become embedded in our outlooks. We accept these influences without thinking much about

  them. To the extent that we are aware of the hostile prejudices of other people, we

  may understandably feel afraid. In Fitzjames Stephen’s words:

  The life of the great mass of men, to a great extent the life of all men, is like a water-

  course guided this way or that by a system of dams, sluices, weirs and embankments.

  The volume and quality of the different streams differ, and so do the plans of the

  works by which their flow is regulated, but it is by these works—that is to say, by

  their various customs and institutions—that men’s lives are regulated. Now these

  customs are not only in their very nature constraints, but they are restraints imposed

  by the will of an exceedingly small numerical minority and contentedly accepted by

  a majority to which they have become so natural that they do not recognize them

  as restraints.15

  The upshot of this argument is that there is always an impact that the conduct of

  some people has on others, even if it is only by force of example. This has important

  applications to modern questions of hate propaganda and pornography containing

  a component of violence. To many, the thought that some men take pleasure from

  depictions of sadistic sexual assaults on women is frightening. That the state should

  freely allow such materials to circulate will knock away one of the “weirs and embank-

  ments” by which the mass of people take their cues for behaviour. It is not irrational to

  fear that such materials, if allowed to circulate, will have a deleterious effect on men’s

  attitudes towards them.16

  Fitzjames Stephen also takes issue with the exceptions Mill allows for children

  and a nation “in its nonage,” that is to say, in an undeveloped state (or, in the language

  used in his time, a “backward” nation). Mill reasons that such people, lacking edu-

  cation, are not in a position to benefit from free discussion. But Fitzjames Stephen

  counters that not only children but also many adults in supposedly advanced societ-

  ies are often not improved by discussion. In fact, he says, there is never a time when

  discussion will necessarily lead or not lead to improvement. Therefore, compulsion is

  never justified or always justified, depending on how you construe things.

  Fitzjames Stephen, himself, has a low opinion of the capacity for the masses to be

  improved by discussion: “If we look at the conduct of bodies of men as expressed in

  their laws and institutions, we shal find that, though compulsion and persuasion go

  hand in hand, from the most immature and the roughest” societies “up to the most

  civilized, the lion’s share of the results obtained is due to compulsion....”

  Parliamentary government is simply a mild and disguised form of compulsion. We

  agree to try strength by counting heads instead of breaking heads, but the principle is

  exactly the same. It is not the wisest side which wins but the one which for the time

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  being shows its superior strength ... The minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority.17

  Fitzjames Stephen’s criticism comes from the standpoint of what is sometimes

  called managerial liberalism, the Benthamite attitude that looks at overall social good

  rather than individual rights. Mill, on the other hand, is concerned with the need for

  individual self-development. On Mill’s view, even if people choose the wrong solu-

  tion to a problem, they are better for having developed the critical capacities within

  themselves to discuss and deal with the problem. As an answer to Mill, then, Fitzjames

  Stephen’s critical observations are incomplete.

  Fitzjames Stephen does pay attention to individual development in some contexts.

  He approves of coercion in the form of taxes to subsidize libraries, art centres, orches-

  tras, and cultural activity generally, thinking this is the right thing to do even if, after

  discussion, it is not what the population at large would agree to. So, while he is enthu-

  siastic about self-development when it arises as an end-product of social planning, he is

  far less concerned with this self-development when it pertains to grassroots discussion

  in the process of arriving at political decisions. From today’s standpoint, his critique

  seems elitist—not surprisingly, given his family background.

  Finally, Fitzjames Stephen makes the very telling point that libel law, the existence

  in some form or other of which is generally supported, conflicts with the amount of

  freedom Mill’s theory allows. Because Mill is thinking of doctrinal matters, not defa-

  mation, some qualifications need to be made if libel law is to be accommodated to his

  theory. For example, the “clear and present danger” test can hardly be appropriate in

  determining what is libellous. Character assassination is harmful to a person whether

  it happens immediately or after some delay. People need to be protected against unjust

  and irresponsible slanders whether or not these are certain to result in measurable

  harm.

  Other Critics

  In 1957, a replay of the Mill-Fitzjames Stephen debate was sparked in Britain by the pub-

  lication of the Report of the Committee on Homosexual Offences and Prostitution,

  otherwise known as the Wolfenden Report.18 The committee’s liberal recommendations

  brought a reaction from Lord Devlin, who published his British Academy Lecture,

  “The Enforcement of Morals,” first in 1959 and then as part of a book, The Enforcement

  of Morals, in 1968.19 Recalling Fitzjames Stephen’s work, H.L.A. Hart thoroughly critiqued Devlin’s 1959 position in Law, Liberty and Morality in 1963.20 The debate

  centred on the question as to whether society had a right to legislate on matters of

  morality, which appeared to many to be a matter of private choice rather than a public

  concern, homosexual acts between consenting adults being a prime case in point. The

  question of free speech also entered the debate with the case, discussed by Hart, of

  Shaw v. Director of Public Prosecutions (1961), which involved a procurer who wanted

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  to publicize, with a Ladies Directory, the various offerings available to potential clients.

  Some nude photographs were included. Having consulted police, who apparently could

  find no definite grounds on which the publication would be illega
l, he went ahead,

  only to be prosecuted and convicted on three charges, one of which was the centuries-

  old common law offence of “conspiracy to corrupt public morals.” The conviction was

  upheld on appeal, and he was sent to jail. The vagueness of this last charge opened up

  a large area of potential convictions for crimes not known as such to the doer. As Hart

  commented: “As a result of Shaw’s case, virtually any cooperative conduct is criminal if

  a jury consider it ex post facto to have been immoral.”21 Shaw’s case falls squarely within

  the realm envisaged and unresolved by Mill in which two strong principles collide,

  although the ex post facto issue, a form of retrospective legislation in effect, should work for Mill in Shaw’s favour.22

  Shortly thereafter, two Australian philosophers, H.J. McCloskey and D.H.

  Monro, also clashed, the former as a critic and the latter as a defender of Mill.

  McCloskey argued that certain beliefs, such as those concerning racial inferiority,

  are not only false but dangerously wrong and deserve severe censure. Mill, he thinks,

  places too high a valuation on possible true belief as against the evils that may result

  from preparing a receptive environment for it, namely, one that tolerates al kinds of

  dangerous falsehoods. Our willingness to accept the limitations of freedom of expres-

  sion in the case of libel and defamation rests in part on our belief that we can reach

  a high degree of probability in these areas about which views are true. McCloskey

  does not mind claiming infallibility about the judgment that sadistic torturing by

  parents of unwanted children is a grave evil. From the absurdity of supposing this is

  not wrong, he argues that our supposed fallibility is insufficient to disentitle society

  from legislating against forms of expression that encourage such outrageous acts. This

  may seem a cumbersome way of saying that such legislation is justified, but, of course,

  there are other arguments to consider than that of fallibility. For example, there are

  practical concerns as to whether legislation is enforceable, whether it will do more

  good than harm, and whether more effective alternative routes to the goal might exist.

  Mill’s argument that suppression denies the population some truth does not apply

  with such force when it is a matter of denying the expression only in a particular time