Speech is a form of action, where an action is something that a person does, something that she causes to come about. What I will call a social action is an action that affects others. Some of the things that we bring about do not affect others at all, so not all action is social action. If speech included talking to oneself or talking in the presence of others in such a way that nothing coherent is conveyed or communicated, then that is not social action, nor is talk which is mundane and not likely to affect the audience in any way. However, in the case where an audience cannot grasp or fully understand what is said at the time, where now I assume that what is said is coherent and hence understandable, speech may qualify as social action. If, for example, the words are recorded in some way and subsequently broadcast, and if, since they are by assumption understandable, they turn out to have an impact at some time after they are uttered, then I take this to be social action. Questions about whether speech should be free or in some way are restricted surely only arise for speech that belongs to the category of social action.
That people are free to do things that can have no possible effect on others is entirely non-controversial (which is not to say that it is non-controversial for people to do what they like all the time in every circumstance, provided that they do not harm others). On the other hand, when actions do or can affect others, when action is social action, then a case can be made for imposing certain constraints. And the case is compelling. If there were no constraints on action, then people would be able to do whatever they liked in all circumstances, including harming one another. Thus the fundamental reason for imposing constraints, be they legal, political or moral, is to prevent harmful conduct. No one wants to be harmed, so everyone can agree that she should not be harmed. The best way to ensure that no such harm will befall a person (or to minimise the total amount of harming) is for her (and everyone else) to adopt the self-same attitude towards others, and endorse the appropriate legal, political and moral institutions that constrain harmful acts. In regard to legal and political institutions and frameworks, the basic reason why these came about in the first place was to regulate such behaviour. Indeed, the raison d’etre of the state is to protect its citizens from harm, both from one another and from outside, and for that citizens agree to bow to the ‘will’ of the state.
Putting the issue in this light, it is hard to see what all the fuss is about free speech. But there is fuss about free speech. Take an example that is current here in Australia: Margaret Court, who won lots of tennis tournaments, is to be awarded Australia’s highest honour, a Companion to the Order of Australia. This is in spite of the fact that she has been an outspoken critic of the LBTIQ+ community, and marriage equality, maintaining that only ‘traditional’ marriage is consistent with the bible and the will of god. For instance, she has said of transgender people, that they are ‘of the devil’ and not ‘of god’. It is not entirely clear just what this means and implies, but it is obviously not good. She has also said that gays choose to be gay, and so presumably could have chosen not to be gay, which for Court is the only choice consistent with the teachings of the bible. For a transgender or gay person who is not religious and who is confident and secure, such remarks will clearly be very offensive though perhaps not be too seriously harmful. But for other members of that community, they may be extremely harmful indeed. Court has said that her critics, of which there are many, should differentiate between her tennis success and her work as a Pentecostal preacher, where she presents her naively literalist view of biblical teachings on LBTIQ+ matters. Contrast this with the case of Alan Bond. He was instrumental in Australia’s winning the America’s Cup in 1983, the first time a non-USA team won the cup in over 100 years. Among other awards, he was made an officer of the Order of Australia (the second highest honour, one down from Court’s. But Bond’s business empire collapsed, he resorted to fraud, got convicted, went to gaol, and lost his award. No one suggested excepting his America’s Cup achievement and letting him keep his order. Let us begin by asking what is the difference between the cases of Court and Bond? Or, more to the point, what is the relevant difference between these two cases?
The cases evidently differ because of the nature of wrongs committed by Court and Bond. What Bond did was tangible in the sense that he stole property; he deceived people in giving him money when he knew he was unable to replay them. Theft is a crime and always has been, so it is easy to see what Bond did was wrong. What Court has done, and still does, is not tangible in this sense. She does not deprive anyone of what is rightfully their’s by way of property or other goods, she does not physically engage with anyone, assault or imprison them in any way. It is therefore easier to form the view that she does not harm at all. But it does not follow that lack of tangible physical engagement between people always means that no wrong has been committed. One person can force another to physically commit a crime and that is clearly wrong. Incitement to commit a harmful act by various measures, including speech, is also wrong. That there has been harm done in these kinds of cases does not require much argument if any at all: harm, which was intended by the agent, has been caused by her actions and would not have happened without those actions. There is therefore a causal connection between the agent who intends the crime to be committed and coerces or incites others to take action, and the harm committed: this is proximate, not ‘direct’ causation, but nevertheless the assumption is that the harm would not have taken place without the original agent’s action. In these instances where the agent does not herself do any tangible harm, she still intends that harm is done, and that is wrong. Thus agents can be responsible for harming even if they do not ‘do’ the harm themselves, in the sense that they do not carry out the action that, so to speak, does the actual damage. This is sufficient to show that speech should not be free in every kind of situation, that people can say what they like to whoever they like.
Court does not (I will assume) intend to harm members of the LBTIQ+ members. But not intending to harm does not mean that an agent is not responsible for any harm that her actions, be they speaking or otherwise, and hence that what she does is not wrongdoing if it is not intended. There are two kinds of cases here: those in which the agents is aware that what she does is harmful, though again that is not her intention, and those in which she is not aware that this will happen, but this lack of foresight is not excusable and she should have been so aware. Court is aware that what she says in harmful, if only because that has been pointed out to her many times. Her response has always been to claim that she is only stating views that can be found in the bible, and as a devout Christian that carries more weight than any other consideration. Now it is necessary to decide if this response carries sufficient weight. However, and this is the crucial point, the issue is not that Court is allowed to say whatever the she likes because everyone has an unrestricted right to free speech, or that Court is allowed to say whatever she likes because everyone has the right to free speech provided that what is said is not intended to cause harm, but that Court only has a right to free speech provided that any harm that might be caused is justified. Unless one holds that harming is always wrong in every conceivable circumstance – surely an untenable position - then harmful action may be justified and if so it is no longer judged to be wrong. What it takes to justify harmful action is a matter separate and distinct from the fact that some justification is needed to defeat the charge of wrongdoing. My own view is that harming is only justified in circumstances where a comparable amount (at least as much) harm is thereby prevented. It is entirely possible to argue for a different criterion while agreeing on the kinds of situations where justification is necessary. I do not think that any harm Court causes is justified, others may disagree, but we can both agree that she needs justification.
My aim here is to argue that there are the limits free speech are the same as those on all forms of social action. If so, then we might also consider speech that is negligent in the sense that the agent does not realise, or is not aware, that her words cause harm to others. To argue that she is responsible for the harm she does and is therefore guilty of wrongdoing, it is necessary to show that she should have been aware of these matters. This is the case for all forms of social action, when we come to judge whether the agent is guilty of wrongdoing so again we see that speech is not an exception, the fact that the deed is spoken rather than acted out in some other way is, again, not relevant. This is what I have tried to show in the post.