Randal Marlin
Page 47
and place. McCloskey is sympathetic to such a possibility:
[I]f it were to be found that the publishing of the true figures concerning Negro
crime rates in the USA in respect of murder and rape, incited mob violence, and
opposition to poverty relief measures, it would be reasonable for enlightened legisla-
tors to consider temporarily restricting the publication of these figures.23
Monro agrees with McCloskey that in some areas—such as the fact that arsenic
is poisonous—it is important to know the truth, not just the reasons on which it
is based, and so restraints on mischievous false assertions in that regard might well
CHAPTER 6: FREEDoM oF E XPRESSIon: SoME CL ASSICAL ARgUMEnTS 235
BV-Propaganda-Interior-04.indd 235
9/5/13 4:52 PM
be justified. However, he says, this situation hardly applies to politics, morality, and religion. Censorship harms its own cause in the long run by generating the suspicion
that the view suppressed cannot be shown to be false if it has been censored. Nor
are the people in government charged with making censorship decisions likely to be
those whose opinions one would readily trust. This point is clearly illustrated by a case
some years ago in Ottawa. A person submitted a roll of film for developing. The roll
contained a few pictures of his three-year-old son in a state of nudity. The pictures
were handed over by a clerk to police on the grounds that they fell foul of the child
pornography law. Charges were dropped, but the person involved had legal expenses
and had to undergo with his wife and son some counselling from the local Children’s
Aid Society.24
Suppression of crime statistics, Monro argues, “would lead people to suspect the
truth (indeed to suspect rather more than the truth) and so would defeat its own
purpose.”25 By making exceptions to the free speech principle, the atmosphere of free
discussion is destroyed, in the long run causing more harm than good. Of course,
Monro assumes that the facts of suppression are discovered. It can be argued that if
censorship operated in the form of behind-the-scenes pressures, no such information
would become public, and so there would be no change in the atmosphere of public
discussion. Such an argument assumes the existence of the kind of controls and phi-
losophy associated with a closed society, with all the dangers associated with such a
society. I prefer the notion of an open society that lies behind Monro’s assumption.
MoDERn CoMMUnICATIonS MEDIA: A FREE AnD oPEn
EnCoUnTER?
It is often observed that the “free and open encounter” envisaged by both Milton
and Mill hardly obtains with the modern mass media of communication. Some peo-
ple wield enormous power over the content of the media. Others lack such power.
Whether one gets a hearing or not depends on the editorial judgment of those to
whom one submits an article or letter. The media have their own particular interests
in increasing circulation and attracting advertisers, so the truth may sometimes take
a back seat to the question “Will it sell?” Complex arguments stand less of a chance
of being published in a letter to the local newspaper because editors rightly surmise
that a majority of readers will not have the time to read carefully and prefer the gist
of an argument to its full explication. The problem of unequal space, attention, and
emphasis was succinctly put by Charles Rembar in an article for The Atlantic Monthly:
“If you and I are opponents, and I speak through a bul horn while you speak through
a kazoo, you have no freedom of speech.”26 The question that should be asked is: who
has more money to spend?
236 PROPAGANDA AND THE ETHICS OF PERSUASION
BV-Propaganda-Interior-04.indd 236
9/5/13 4:52 PM
A second point to note regarding the premises of Mill’s thought is that he was thinking of arguments and the need to develop the ability to expose and defend oneself against superficial y plausible but faulty reasoning. However, today the messages
thrown at us are often surreptitious and appeal to the subconscious. It is not clear that
exposure to this form of communication strengthens people’s characters.
The appropriateness of the Milton-Mill “open encounter” concept was called in
question by a special committee set up in Canada in the 1960s to examine the feasibility
and philosophical justification for legislating against hate propaganda. The commit-
tee of seven members included the distinguished jurist, Maxwell Cohen, Dean of the
McGill University faculty of law, as chair and two rising stars, Pierre-El iot Trudeau,
later prime minister of Canada, and Mark R. MacGuigan, a future minister of justice.
In their report, published in 1966, the committee states that it does not share Milton’s
faith in the simple truth. When emotion displaces reason, people can be swept away,
allowing their rationality to be flooded by emotion.
The successes of modern advertising, the triumphs of impudent propaganda such
as Hitler’s, have qualified sharply our belief in the rationality of man. We know that
under strain and pressure in times of irritation and frustration, the individual is
swayed and even swept away by hysterical, emotional appeals. We act irresponsibly if
we ignore the way in which emotion can drive reason from the field.
Radio, television, motion pictures, the pervasiveness of print are new elements
in the twentieth century which the classic supporters of free speech never had to
reckon with. Their arguments from the seventeenth century to the nineteenth century
assumed scattered isolated readers or a small literate audience within the range of a
man’s natural voice. They had not to consider the impact of speech associated with
colour, music and spectacle on the feelings of great multitudes of people.
In the committee’s view, the great confidence that defenders of free speech had in
Mill’s time that truth would prevail has been undermined by experience since then:
We know that, as well as individual interests, there are social interests to be protected,
and these are not always protected by unrestricted individual freedom. The triumphs
of Fascism in Italy, and National Socialism in Germany through audaciously false
propaganda have shown us how fragile tolerant liberal societies can be in certain
circumstances. They have also shown us the large element of irrationality in human
nature which makes people vulnerable to propaganda in times of stress and strain.
Both experience and the changing circumstances of the age require us to look with
great care at abuses of freedom of expression.27
This report led to the adoption of the hate propaganda legislation currently con-
tained in sections 318 and 319 of the Criminal Code of Canada. It contains numerous
CHAPTER 6: FREEDoM oF E XPRESSIon: SoME CL ASSICAL ARgUMEnTS 237
BV-Propaganda-Interior-04.indd 237
9/5/13 4:52 PM
defences along with the provision that the consent of the attorney general is required before proceedings under some of its provisions can take place. There are considerable
safeguards for free speech in this legislation, but some civil libertarians feel there are
not enough. In any case, the legislation has been subjected to scrutiny by the Supreme
Court of Canada and has been a
ccepted as constitutional.
We will examine the hate propaganda law in Chapter 7. For the moment, our
concern is with the Milton-Mill notion of the “free and open encounter.” Sometimes,
as with Milton himself, there appears a mercantile metaphor. Justice Holmes referred
to “free trade in ideas ... the power of the thought to get itself accepted in the compe-
tition of the market”;28 it is important not to be blinkered by this metaphor. If taken
literally, it suggests that a sufficiently wealthy buyer could take over the market, but
free speech theory could hardly want to guarantee the possibility of such a monopoly.
Talk about monopolization of the media needs to be updated to include reference
to the Internet, which has come to play a central part in the life of almost everyone who
can afford a computer and an access provider. In theory, the Internet provides the abil-
ity to escape the domination of the few owners of the major media networks by linking
individuals with other individuals, each with their own particular sources of informa-
tion. Informal networking of individuals in theory provides more immediate access to
news and opinion than the major networks can provide. In practice, there are numerous
roadblocks in the way of developing an anarchy of cyberspace. These will be discussed
later in Chapter 8. For now, it is enough to say that talk about media monopoly is not
yet outdated. Alternatives to corporate dominance over the media exist, but they suf-
fer from the lack of inducements and support available from the dominant corporate
players.
ADDITIonAL FREE SPEECH ARgUMEnTS
Mill’s case for free speech rests on the argument that it promotes the truth, self-
fulfilment and self-development, autonomy, and progress. His arguments are mostly
instrumentalist: free speech is a means to something good. But the idea that free
speech is tied to free thinking is also present. He values free thinking, and so his argu-
ment includes the idea that free speech is valuable for more than just what it will lead
to. It is, therefore, as some have said, constitutive of autonomy and a good life, not
just a means to that end. This gives the preservation of free speech added weight when
competing policy considerations are adduced. Mill posits a fifth, non-instrumental-
ist argument, namely, the argument from validation discussed earlier. One does not
have the authority to put forward claims if the opposing side has not been granted a
hearing.
Other writers have introduced new arguments or given greater attention and
development to ideas implicit in Mill, and to these we now turn. The arguments are
238 PROPAGANDA AND THE ETHICS OF PERSUASION
BV-Propaganda-Interior-04.indd 238
9/5/13 4:52 PM
democracy, a good balance between stability and change in society, social interaction and community, opposition to tyranny and to the slippery slope leading to it, and legitimization of lifestyles. Each of these arguments deserves some attention.
Democracy
The argument from democracy is possibly the most powerful argument for an uncom-
promising protection of freedom of expression. Eric Barendt calls it “probably the
most attractive and certainly the most fashionable free speech theory in modern
Western democracies.”29 Its most notable proponent has been, in the United States at
least, Alexander Meiklejohn. According to this argument, the concept of democracy
is that of self-government by the people. For such a system to work, it is necessary
that the electorate be enlightened and informed. In order to be appropriately knowl-
edgeable, there must be no constraints on the free flow of information and ideas.
Democracy will not work, will not be true to its essential ideal, if a group of people
in power are able to manipulate the electorate by withholding some information and
stifling criticisms by charges of sedition, violation of state secrecy requirements, or
threats of libel, etc. The argument is particularly significant where considerations of
prior restraint are the issue, because use of this mechanism prevents the people from
knowing even what it is they are not permitted to know.
The desire to manipulate opinion can stem from the highest motive of seeking to
bring about an important, good objective for society. However, choosing manipula-
tion negates, in its means, the democratic ideal. As Meiklejohn writes:
[T]he point which we are making is that the externalized measuring of the play of
forces which serves the purposes of business or of science is wholly unsuited to our
dealing with problems of moral or political freedom.... We are experts in the knowl-
edge and manipulation of measurable forces, whether physical or psychological. We
invent and run machines of ever new and amazing power and intricacy. And we are
tempted by that achievement to see if we can manipulate men with the same skill
and ingenuity. But the manipulation of men is the destruction of self-government.30
A classic defence of free speech on the basis of democracy was made by Justice
Brandeis of the US Supreme Court, in Whitney v. California:
Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American government.
They recognized the risks to which all human institutions are subject. But they
knew that order cannot be secured merely through fear of punishment for its infrac-
tion; that it is hazardous to discourage thought, hope and imagination; that fear
breeds repression; that repression breeds hate; that hate menaces stable government;
CHAPTER 6: FREEDoM oF E XPRESSIon: SoME CL ASSICAL ARgUMEnTS 239
BV-Propaganda-Interior-04.indd 239
9/5/13 4:52 PM
that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.
Believing in the power of reason as applied through public discussion, they eschewed
silence coerced by law—the argument of force in its worst form. Recognizing the
occasional tyrannies of governing majorities, they amended the Constitution so that
free speech and assembly should be guaranteed.31
In Canada, Justice Rand spelled out in Boucher v. The King how alterations in the
view of public authority over the course of the last few centuries have modified the
concept of seditious libel:
Up to the end of the eighteenth century it was, in essence, a contempt in words of
political authority or the actions of authority. If we conceive of the governors of soci-
ety as superior beings, exercizing a divine mandate, by whom laws, institutions and
administrations are given to men to be obeyed, who are, in short, beyond criticism,
reflection or censure upon them or what they do implies either an equality with them
or an accountability by them, both equally offensive.... But constitutional conceptions
of a different order making rapid progress in the nineteenth century have necessitated
a modification of the legal view of public criticism; and the administrators of what we
call democratic government have come to be looked upon as servants, bound to carry
out their duties accountably to the public.32
All of these remarks are powerful statements in favour of prot
ecting criticisms
directed against state authority and of the freest possible discussion of public affairs.
Worries are raised, however, when we contemplate, in the context of this argument,
the ability of a few wealthy individuals to control the mass media of communication.
Legislation against such monopoly control arguably enhances the value of democracy
invoked here. The case of United States v. Associated Press elicited remarkably trenchant comments from the judiciary on just this matter. The case involved the attempt to freeze
out the Chicago Sun from membership in the Associated Press, thus giving the Sun’s competition, the Chicago Tribune, an enormous advantage. Hearing the case in New York, Justice Learned Hand stated that the newspaper industry serves one of the most
vital of general interests: the dissemination of news from as many different sources,
and with as many different facets and colours as possible. That interest is closely akin
to, if indeed it is not the same as, the interest protected by the First Amendment; it
presupposes that right conclusions are more likely to be gathered out of a multitude
of tongues, than through any kind of authoritative selection.33
When the case reached the US Supreme Court, Justice Hugo Black issued
another memorable pronouncement:
240 PROPAGANDA AND THE ETHICS OF PERSUASION
BV-Propaganda-Interior-04.indd 240
9/5/13 4:52 PM
The First Amendment ... rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare
of the public, that a free press is a condition of free society.... Freedom of the press
from governmental interference under the First Amendment does not sanction
repression of that freedom by private interests.34
A good Balance Between Stability and Change
The argument that freedom of expression helps to provide for a good balance between
stability and change is a corollary to the argument from democracy. It pays special
attention to the way such freedom can act as a kind of “safety valve” to let off steam
when people might otherwise be bent on revolution or other destructive social action.
Thomas I. Emerson outlines this argument in his article “Toward a General Theory of