An ecological theory of free expression âshaped by multiple complementary, mutually reinforcing rationalesâfocuses on institutional environments that respect and further expressive activity and realize the goods associated with it.
This book elaborates a theory of free expression . It is concerned with why we ought to value and protect expressive freedom and with the sorts of institutional environments likely to safeguard and encourage it. I seek to show why, both ex ante and ex post, expressive activity as such should not be burdened at all with legal sanctions.
I make my case in the idiom provided by a moral theory rooted in the Aristotelian tradition.1 Some aspects of this approach are doubtless controversial,2 but in general it is quite similar to familiar Kantian and Humean approaches and to other Aristotelian positions. I donât seek to defend the theory here, and much of what I say could readily be recast in one or another theoretical vocabulary. But the theory does, in any case, provide a convenient way of thinking and talking about the moral and legal issues I address.
On this view, the basic aspects of well-being for creatures like ourselvesâwe might also talk about basic goods or basic dimensions of welfare or flourishing or fulfillmentâinclude life and bodily well-being, knowledge , practical reasonableness , play , skillful performance, friendship and sociability, aesthetic experience , imaginative immersion, meaning and harmony with reality in the widest sense, sensory pleasure,3 and self-integration .4 These dimensions of welfare arenât reducible to any common, underlying element like happiness (understood subjectively) or desire-satisfaction, nor are they best understood as means to any independently specifiable goal. They are incommensurable, and individual instances of these aspects of well-being are non-fungible.5
One way of flourishing is choosing wisely with respect to oneâs own flourishing and the flourishing of others. Doing so means adhering to a set of basic requirements,6 at least four of which are important here: (i) acknowledge the basic goods, and only the basic goods, as non-derivative, non-instrumental reasons for action (the Principle of Recognition); (ii) donât purposefully or instrumentally injure any aspect of well-beingâoneâs own or anotherâs (the Principle of Respect ); (iii) donât arbitrarily distinguish among those affected by oneâs actionsâdo so only when doing so (a) is a means of effecting or promoting participation in an actual aspect of well-being (say, picking people for a team in an athletic contest on the basis of their ability rather than at random) and (b) is consistent with a general rule one would be willing to see applied to oneself and oneâs loved ones as well as others (the Principle of Fairness ); and (iv) set priorities and make possible long-range planning by making some small- and large-scale commitments and adhere to these commitments under ordinary circumstances (the Principle of Commitment).7
In virtue of this cluster of principles, choosing in a vast number of ways, crafting any of a vast array of lives, will qualify as reasonable. By contrast, we will have good reason to use force or substantial social pressure to interfere with a smaller subset of choicesâto prevent, end, or remedy unwarranted injuries to peopleâs bodies or justly acquired possessions effected by those choices.8 But while they allow for the use of force or social pressure in some cases, the principles of practical reasonableness make room for the legal and social toleration of a vast number of unreasonable ways of life. Choices integral to these ways of life are inconsistent with the requirements of practical rationality; but those same requirements give us reason to avoid interfering with such choices forcibly or by means of intense social pressure.
Many discussions of free expression in the United States presuppose or seek to justify a particular understanding of First Amendment jurisprudence. It is certainly the case that American constitutional law has offered relatively robust protections for many varieties of expression. But this book is an exercise in moral, political, and legal theory; I do not seek to take positions regarding contested questions in constitutional exegesis, nor do I assume the authority of the US Constitution (or of the statutes, treaties, and court decisions invoked in connection with the issue of freedom of expression in Europe, Canada, and elsewhere).9 In addition, I am concerned, as I have indicated, not only with reasons for people to avoid favoring or imposing legal and other forcible constraints on expressive acts but also with reasons for individuals and consensual institutions to avoid imposing non-forcible sanctions on such acts.10
âExpressionâ here is a catchall term. It is easy to point to instances of what the term is intended to cover: the words and pictures in newspapers, books, magazines, blogs, tattoos, and speeches; the moving images in films and television programs; the sounds experienced when listening to live and recorded musical performances and addresses.11 What I have in mind is something like the information-content available by means of any of these mediaâthat is, content that influences or seems likely to influence the thoughts, feelings, imagination, or behavior of one or more recipients apart from its role in announcing the intentions of the communicator.12 The expressive content of an act ordinarily includes at least (i) the thoughts, attitudes, emotions , or the like it is intended to evoke and (ii) the further fact that the communicator intends to evoke these. An act may be expressive even when not deliberate. But an act is often meaningful just to the extent that it is seen as conveying particular contents which the communicator intends to convey and as conveying the further thought that the communicator wishes to convey just these contents.
Freedom of expression c...