Freedom of Expression/Philosophical Origins/Tradition contributions/Millian Utilitarianism
What have religious and philosophical traditions contributed to our understanding of this right?
Millian Utilitarianism
John Stuart Mill elaborates on utilitarian ideas of using free speech in furtherance of better governance; he argued that all opinions should be allowed because public discourse will separate good ideas from bad ones (Niesen 7). This is known as the “marketplace of ideas” argument. Under this theory, even false beliefs have their place (Mill believed opinions could have truth or falsity), because they can lead public discourse to discover truth (Niesen 9). Mill makes little distinction between opinion and fact because they complement each other (Niesen 10). In Law of Libel, Mill argues that finding true ideas requires an understanding of facts (Niesen 12). Mill would not guarantee the right to voice untrue facts (Niesen 12). There is scholarly debate as to whether there is room in Mill’s thought for governments to limit the expression of true facts in certain situations. Niesen cites a thought experiment put forth by Jonathan Riley, where someone publishes pornographic material of an ex-lover, an act which conflicts with the other party’s right to self-determination. Niesen argues that this could plausibly be considered an expression of fact whose purpose is not to aid in the formation of public opinion, and a Millian government may ban this form of speech.
US courts, including the Supreme Court, have invoked the marketplace of ideas theory hundreds of times over the past century (Schultz & Hudson 2017). For a recent example, in 2017, the Supreme Court invalidated a federal law banning offensive terms in trademarks, drawing on the marketplace of ideas theory in its unanimous opinion (Hudson 2017).
References:
Niesen, P. ‘Speech, truth and liberty: Bentham to John Stuart Mill.’ Journal of Bentham Studies, 2019, 18(1), pp. 1–19. DOI: https://doi. org/10.14324/111.2045-757X.046.
Schultz and Hudson: https://www.mtsu.edu/first-amendment/article/999/marketplace-of-ideas Hudson: https://mtsu.edu/first-amendment/article/1528/matal-v-tam