A Republican Theory Of Free Speech:

Critical Civility 1st Edition Suzanne

Whitten
Visit to download the full and correct content document:
https://ebookmass.com/product/a-republican-theory-of-free-speech-critical-civility-1st-
edition-suzanne-whitten/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Ontology and Phenomenology of Speech: An Existential

Theory of Speech Marklen E. Konurbaev

https://ebookmass.com/product/ontology-and-phenomenology-of-
speech-an-existential-theory-of-speech-marklen-e-konurbaev/

An Ecological Theory of Free Expression 1st ed. Edition

Gary Chartier

https://ebookmass.com/product/an-ecological-theory-of-free-
expression-1st-ed-edition-gary-chartier/

A Dictionary of Critical Theory 2nd Edition Ian

Buchanan

https://ebookmass.com/product/a-dictionary-of-critical-
theory-2nd-edition-ian-buchanan/

Liars. Falsehoods and Free Speech in an Age of

Deception First Edition Cass R. Sunstein

https://ebookmass.com/product/liars-falsehoods-and-free-speech-
in-an-age-of-deception-first-edition-cass-r-sunstein/
Islam, Civility and Political Culture Milad Milani

https://ebookmass.com/product/islam-civility-and-political-
culture-milad-milani/

The Palgrave handbook of critical theory Thompson

https://ebookmass.com/product/the-palgrave-handbook-of-critical-
theory-thompson/

A Critical Theory of Global Justice. The Frankfurt

School and World Society Malte Frøslee Ibsen

https://ebookmass.com/product/a-critical-theory-of-global-
justice-the-frankfurt-school-and-world-society-malte-froslee-
ibsen/

RF and Microwave Circuit Design: Theory and

Applications Charles E. Free

https://ebookmass.com/product/rf-and-microwave-circuit-design-
theory-and-applications-charles-e-free/

What Snowflakes Get Right: Free Speech, Truth, And

Equality On Campus Ulrich Baer

https://ebookmass.com/product/what-snowflakes-get-right-free-
speech-truth-and-equality-on-campus-ulrich-baer/
A Republican Theory
of Free Speech
Critical Civility
Suzanne Whitten
A Republican Theory of Free Speech
 Suzanne Whitten

A Republican Theory
of Free Speech
Critical Civility
Suzanne Whitten
School of History, Anthropology,
Philosophy and Politics,
Queen’s University Belfast
Belfast, UK

ISBN 978-3-030-78630-4 ISBN 978-3-030-78631-1 (eBook)

https://doi.org/10.1007/978-3-030-78631-1

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer
Nature Switzerland AG 2022
This work is subject to copyright. All rights are solely and exclusively licensed by the
Publisher, whether the whole or part of the material is concerned, specifically the rights
of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on
microfilms or in any other physical way, and transmission or information storage and
retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology
now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc.
in this publication does not imply, even in the absence of a specific statement, that such
names are exempt from the relevant protective laws and regulations and therefore free for
general use.
The publisher, the authors and the editors are safe to assume that the advice and informa-
tion in this book are believed to be true and accurate at the date of publication. Neither
the publisher nor the authors or the editors give a warranty, expressed or implied, with
respect to the material contained herein or for any errors or omissions that may have been
made. The publisher remains neutral with regard to jurisdictional claims in published maps
and institutional affiliations.

This Palgrave Macmillan imprint is published by the registered company Springer Nature
Switzerland AG
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
All the sacred rights of humanity are violated by insisting on blind
obedience.
—Mary Wollstonecraft, A Vindication of the Rights of Woman
To Alasdair.
 Contents

1 Introduction 1
1.1 The Question 1
1.2 The Problem 4
1.3 Book Outline and Structure 11
References 13
2 Questioning the Non-Interference Paradigm 17
2.1 Introduction 17
2.2 The Non-Interference Paradigm 22
2.3 The First Amendment and the Battle for the Supreme
Court 24
2.4 Philosophical Defences of the Non-Interference Ideal 28
2.4.1 Two Defences: Democracy and Autonomy 29
2.5 Exposing the Non-Interference Paradigm 34
2.5.1 Speech and Structural Injustice 37
2.6 Conclusion 43
References 44
3 Liberal Toleration and Harmful Speech 51
3.1 Introduction 51
3.2 Waldron and The Harm in Hate Speech 53
3.2.1 Criticisms of Waldron: Assurance Is All
Around Us 57
3.3 Liberal Toleration 59

ix
x CONTENTS

3.3.1 Toleration as Recognition? 61

3.3.2 Forst and Toleration as Reciprocal Respect 72
3.3.3 Respect and the Limits of Toleration 74
3.4 Conclusion 79
References 80
4 Critical Republicanism and Harmful Speech 85
4.1 Introduction 85
4.2 The Historical Revival 86
4.3 Neo-republicanism: Core Principles 88
4.3.1 Freedom as Non-domination 88
4.3.2 Intersubjective Awareness of Status 90
4.3.3 Civic Virtue and Vigilance 98
4.4 Pettit: Two Criticisms 100
4.4.1 Norms and Status 101
4.4.2 Norms, Social Equality, and Agency 110
4.5 Critical Republicanism 115
4.6 A Critical Civility? 120
4.7 Conclusion 125
References 125
5 Recognition, Norms, and the Struggle for Normative
Authority 135
5.1 Introduction 135
5.2 The ‘Free Speech Wars’ and the Serena Williams
Cartoon 137
5.3 Recognition Theory: A Brief Overview 142
5.3.1 Charles Taylor and the Politics of Difference 143
5.3.2 Honneth and the ‘Three Spheres’ of Respect 147
5.3.3 Darwall and ‘Two Kinds’ of Respect 153
5.4 What Are Norms? 160
5.4.1 Social Norms and Moral Norms 163
5.5 Recognition Struggles, Norms, and the Grammar
of Moral Conflict 166
5.5.1 Social Justice and the Denial of Normative
Authority 168
5.5.2 Dealing with the Difficult Cases 174
5.6 Conclusion 175
References 176
 CONTENTS xi

6 Critical Civility: A Republican Theory of Free Speech 185

6.1 Introduction 185
6.2 Critical Civility: An Overview of Main Principles 188
6.3 The Normative Demands of Citizen Relations 191
6.4 Non-domination, Vigilance, and Social Freedom 203
6.5 Responsibility and Structural Injustice 205
6.5.1 Accountability and Blame 208
6.5.2 Moral Grandstanding and the Problem
of Shaming 210
6.6 Critical Civility and the Role of Institutions 215
6.7 Conclusion 224
References 225

Concluding Remarks 231

Index 237
 About the Author

Suzanne Whitten is a Lecturer in Political Theory and Philosophy at

Queen’s University Belfast, having previously taught at the University of
Limerick. In the past, Suzanne has been published in the Critical Review
of International Social & Political Philosophy and Ethical Theory & Moral
Practice. Suzanne was also part of the Core Expert Group in the Northern
Ireland Independent Review on Hate Crime Legislation.

xiii
 CHAPTER 1

Introduction

1.1 The Question

In June of 2018, Sarah Huckabee Sanders, then Donald Trump’s White
House Press Secretary, was refused service at The Red Hen restaurant
in Lexington, Virginia. The co-owner, Stephanie Wilkinson, told Sanders
that the restaurant is committed to standards of ‘honesty, and compassion,
and cooperation’ and that, as a defender of the Trump administration,
her business was not welcome. In the wake of the event, Karl Salzmann
from the National Review announced that the United States was in the
midst of a so-called ‘civility wars’ (Salzmann, 2018). According to Salz-
mann, the event, and the social media flurry that followed, had allowed
the true meaning of the term civility to be distorted beyond recognition.
He seemingly had a particular bone to pick with those ‘progressives’1 who
supported the owner of the restaurant in her decision to ask Sanders to
leave. Renée Graham, meanwhile, writing for the Boston Globe,2 echoed
the views of many when she urged that, when our deepest values are at

1 One of Salzmann’s targets was Democratic congresswoman Maxine Waters, who

appealed to a crowd the following week: “If you see anybody from that cabinet in a
restaurant, in a department store, at a gasoline station, you get out and you create a
crowd, and you push back on them!” CNN Politics (2018, June 25).
2 See Renée Graham (2018, June 26) The Boston Globe.

© The Author(s), under exclusive license to Springer Nature 1

Switzerland AG 2022
S. Whitten, A Republican Theory of Free Speech,
https://doi.org/10.1007/978-3-030-78631-1_1
2 S. WHITTEN

stake, the rules of civil conduct must go out the window.3 Calls for greater
civility have always, according to this view, involved attempts at those in
power to exert control over the ‘uncivilized’ mob. As political scientist
Ian Ward notes, civility is often a call to conform to ‘the terms of unjust
social arrangements’ (2017, p. 118):

When a boss demands that his workers accept lower wages, precarious
employment, less say in how the operation is run, and dangerous working
conditions, what is the intended effect of counseling the workers to “be
nice” in their interactions with management, besides dampening workers’
justified anger at such arbitrary exercises of power? (2017, p. 118)

In response, Salzmann rejected Graham’s ‘call to arms’ as a profound

betrayal of the democratic principles on which the United States was built,
noting that ‘If we forget why we have civility, then in many ways we forget
why we have democracy — why we have a political structure at all’. Unless
we endorse civility as a check on our ‘unbridled passions’, so he argues,
then we risk sacrificing independence itself.
The above case is but one example of the so-called ‘free speech’ or
‘civility’ wars of the last decade. As I argue in this book, such cases reveal
the extent of the conceptual confusion that has arisen in both popular and
academic understandings of free speech. Traditionally, freedom of speech
has been understood as a negative freedom, one which places limits on
state interference with the speech of individuals. The rationale for limiting
state interference in matters of speech stems from those familiar reasons
that have been defended for centuries: that speaking one’s mind, without
fear of severe penalty or social sanction, comprises one of the funda-
mental aspects of a human life. Free speech is thus considered central
to living as an autonomous person who is considered capable of engaging
in discourse with one’s fellow human beings. Without free speech, then,
we are missing out on a crucial aspect of human agency. And, without
the basic freedom to engage in deliberations with others, any attempt at
having democratic influence in society will be extremely difficult indeed.
In short, speech is essential for our freedom. Quite apart from the threats
posed by state interference, however, there are many other ways in which
our exercise of free speech can be unjustly limited, and it is in these

3 On this, Graham notes: “You don’t bring Miss Manners to a no-holds-barred street
fight. You resist, and you get angry” (2018, June 26).
 1 INTRODUCTION 3

informal civil spheres in which many of the so-called ‘free speech crises’
play out.
Instead of understanding these conflicts as ‘battles’ over the proper
bounds of free expression, then, this book argues that they all reflect a
tension over the appropriate bounds of civility, that is, the kinds of rela-
tions we share with others in civil society. This is not to say that free
speech is not important: it is. The problem stems from the fact that
‘free speech’ has been confusingly expanded to include everything from
campus speech codes and ‘safe spaces’, to Twitter mobs, ‘cancel culture’,
workplace regulations, and offensive cartoons. Such cases are rarely about
the right to free speech proper, and are instead about who gets to make
decisions about what others can say and where. Instead of aiming towards
some ideal of ‘free speech’, then, this book argues that what we need is to
renew the concept of civility, where formal protection of the ‘right’ to free
speech forms an integral, yet insufficient, role. But the civility I argue for
is not concerned with upholding norms of polite behaviour. Rather, and
building on the recent emergence of a ‘critical’ branch of neo-republican
theory, the critical civility I endorse here can be understood as a value
concept comprising all of the norms, rules, practices, social relations, and
structures that make up our interactions with one another. The novel
critical element I propose establishes a set of active, positive duties for
citizens, duties that call upon individuals to engage in the interrogation
and critique of those social arrangements that fail to uphold the equal
status of all of society’s members.
But what exactly is civility? As I describe it in this book, civility
comprises the expressive component of social interaction. As social egali-
tarians have shown us, our enjoyment of equal status depends not only on
formal and institutional protections of equality, but on what surrounding
norms and social arrangements communicate about our place in society.
And, while the law may (at least in theory) serve to protect the free and
equal status of all in the form of human rights, little theoretical work has
outlined what the responsibilities of individuals actually are in securing
equal status. Part of this expressive component involves engaging with
others as discursive agents. If and how we interact with others in society
reflects our perception of them as moral agents. In a society in which rela-
tions are structured along unjust social hierarchies, those who occupy a
low status will not be able to engage in this important form of normative
interaction with others as they should. In short, they will not be able to
exercise ‘freedom of speech’.
4 S. WHITTEN

In another direct departure from existing understandings of civility as

peaceful coexistence, the neo-republican brand of critical civility I present
here supports the quintessential ‘hard edge’ of exchange in plural soci-
eties. The normative thrust of the book thus does not prescribe a set of
manners of polite behaviour,4 but instead demands that citizens partake
in the shared responsibility of securing relations of social equality through
their interactions with others. This requires that we examine the role
of the state in protecting vulnerable individuals from dominating social
norms, and the role of citizens, as vigilant members of the res publica,
in maintaining particular status relations. Not only is the importance
of the expression of equal respect currently lacking in common liberal
responses to speech conflicts, but, while implicit, remains frustratingly
under-developed in the neo-republican literature. In establishing an alter-
native frame-of-reference for free speech conflicts, critical civility aims to
secure freedom while providing a substantive response to the harm certain
forms of expression can inflict on the lives of those affected.

1.2 The Problem

Over the last few decades, a series of highly publicized and deeply
contentious conflicts over the appropriate bounds of expression have
taken hold in public life. Indeed, many of these conflicts over speech
have exerted a powerful influence over the lives of individuals, with the
potential for expression to induce violence, inform oppressive ideolo-
gies, and divide and persecute communities and nations never far away.
Importantly, many of these incidences concern the kind of offensive (and
frequently harmful) speech that does not fall under hate speech law.
Informing antagonistic relations between religious groups and the secular
majority, the infamous Satanic Verses (1988) controversy was the first
in a series of similar ‘religious offence’ events that would unfold in the
years to come.5 Here, the negative consequences extend beyond the
effects on the feelings of the faithful.6 Conservative commentators in

4 For an argument in favour of the civility as ‘niceness’ view see Oliver (2012).
5 In the last several years, a particular wave of Islamic religious offence has been asso-
ciated with the Danish cartoons controversy (2005), the Charlie Hebdo attacks (2015)
and the murder of Dutch film-maker Theo Van Gogh (2004).
6 Tariq Modood, for instance, argued that the cartoons were a symbol of the oppression
and marginalisation experienced by Muslims in Europe, of which the cartoons were simply
 1 INTRODUCTION 5

such cases, in positing a perceived ‘clash’ between Islamic fundamentalism

and ‘Western liberal values’,7 have offered markedly reductive analyses of
the phenomenon of religious offence, leading many to lay blame at the
foot of an innately ‘Eastern’ disdain for the fundamental principles of
freedom, equality, and pluralism of worldviews.8 These hostile debates,
however, show no signs of slowing down. Since the impassioned dispute
surrounding the ‘Danish cartoon controversy’ in 2005, conflicts over the
proper bounds of expression have multiplied astronomically. The once
semi-regular battles of religious offence, however, have made way for a
new brand of ‘free speech wars’.9 Mirroring the explosive social shifts
sparked by the invention of the printing press in 1439,10 the ubiquitous
expansion of social media, coupled with the never-ending news cycle,
means that the possibilities for speech-related combat have never been
more numerous.
Analyses of such conflicts have been roundly criticized11 for their
myopic understanding of a specific kind of harm that can occur through
expression: that of the disrespectful, dignity-affecting, misrecognition
that such painful images represent.12 When public expression involves
the stigmatization, derogation, essentialization, and exclusion of certain
groups, we can reliably ascertain that such claims target a particularly
crucial aspect of individual identity (Thompson, 2012). The horrors of
racism, sexism, anti-Semitism, homophobia, and the like have, over the
last hundred years, been recognized as ideologies of inferior status upheld
by particular shared norms regarding the group in question. As norms

a symptom. On this point, he stated that “the underlying causes of [Muslims’] current
anger are a deep sense that they are not respected, that they and their most cherished
feelings are ‘fair game’” (2006, p. 5).
7 This common argument takes inspiration from Huntington’s (1997) ‘The Clash of
Civilizations and the Remaking of the World Order’.
8 For an extended analysis see Klausen (2009).
9 While the term has been bandied about since the 1980s (see Sullivan, 1994), recent
conflicts have brought it back into common lexicon This term has been used in recent
years to describe everything from university campus conflicts over speech, the ‘de-
platforming’ of right-wing pundit Alex Jones from numerous social media sites, conflicts
between Trump and the media, and debates surrounding trans activism.
10 See Garton-Ash (2016, p. 11).
11 See Waldron (2012).
12 For an extended discussion of the specific harm of religious offence see Talal Asad
(2009).
6 S. WHITTEN

are reproduced through our interactions with others, it is no surprise that

expression plays a vital role in maintaining and perpetuating the ideology
itself (Stanley, 2015).
As such, we can see support towards equal civil rights for historically
oppressed groups emerge alongside a public disavowal of the expression
of these harmful attitudes. The rise in ‘identity politics’13 has thus accom-
panied an increase in the prevalence of legal and social sanction for the
kind of expression that attempts to subordinate or deny the equal status
of a defined identity group.14 For those who subscribe to the ‘political-
correctness-gone-mad’15 trope, the idea that speech can inflict harm has
swung ‘too far the other way’ in favour of the affected.16 To those who
endorse this stance, the left’s dogmatic commitment to the ‘correct’ mode
of expression frustrates free expression by inflicting disproportionate and
moralistic social sanctions on those who fail to toe the line.17
Every day, then, it seems that we are presented with another free speech
‘crisis’, most often involving a re-hashed discussion of the proper limits
of restriction or sanction for a break in the moral limits of expression.
To illustrate the varied nature of cases involving the proper limits of
expression, I present below several examples:

1. Vie Lusandu, a white French woman living in Britain, and her 11-
year-old son, who is of mixed ethnicity, were subjected to a racist
verbal attack on a Midlands train by four men. The men called her
son a “f****** P***” and told them they were going to “trolley
[them] out of the UK” (The Independent, 2018).

13 The term ‘identity politics’ first originated in the late-1970s black feminist movement.
For one early example see Eisenstein (1978). Since, then, however, the term has come to
be used as a term of derision against social justice movements.
14 For an extensive treatment of hate speech legislation see Brown (2015).
15 Those who subscribe to politically correct viewpoints are now commonly described
as ‘snowflakes’, defined on UrbanDictionary.com as “A clueless and conceited college
student that cannot handle critical thinking from others. In other words, a deluded
jerk. Snowflakes are deluded into thinking that they are without question, entitled to
preferential treatment”.
16 For example, a report by More in Common found that 80% of Americans agreed that
“political correctness is a problem in our country”. See More in Common [Online].
17 See Ronson (2015).
 1 INTRODUCTION 7

2. The Herald Sun, Australia’s most popular newspaper, published

a cartoon of Serena Williams following an on-court disagreement
between Williams and the umpire at the U.S. Open. The cartoon,
drawn by cartoonist Mark Knight, was widely criticized for playing
on racist stereotypes, particularly in its use of the ‘angry black
woman’ trope in its portrayal of Williams (Al Jazeera, 2018).
3. In September 2018, Nike Apparel launched an ad campaign which
used the image of American football star Colin Kaepernick along-
side the tagline ‘Believe in something. Even if it means sacrificing
everything’ (Vox, 2018). Kaepernick had been one of the most
prominent voices in the game’s anti-police brutality protests, which
involved players refusing to stand to attention during the national
anthem and instead ‘taking the knee’ in silent protest. Both the NFL
and Kaepernick’s team had removed him from the league for his
involvement in the protest.
4. In the run-up to Halloween, The University of Kent (BBC, 2018)
warned students not to wear costumes that may impact other
students’ right to a ‘safe space’. Under the guidelines, which were
drafted by the Students’ Union, students were discouraged from
dressing up in ‘blackface’, or as Crusades, cowboys, priests, Mexi-
cans, Nazis, members of ISIS, Native Americans, or The Prophet
Mohammed.
5. New Yorker magazine pulled former White-House strategist Steve
Bannon from their annual festival line-up following the public with-
drawal of participation from several other speakers, including Jim
Carrey, Judd Apatow, and John Mulaney (The Guardian, 2018).
The scheduled guests had posted on social media that their with-
drawal was a response to the decision to include Bannon in the
event, citing his political views as justification.
6. In January 2018, Barry McElduff, a Sinn Fein MP for West Tyrone,
posed for a video, posted on social media, with a loaf of Kingsmill
bread balancing on his head (The Belfast Telegraph, 2018). The
video was published on the anniversary of the Kingsmill massacre
of 1976, a sectarian incident involving the death of ten Protestant
textile workers during the height of The Troubles. While McElduff
denied that he intended to make a connection with the killings, he
nevertheless stood down from his political post as a result of the
public backlash.
8 S. WHITTEN

Despite the vast differences between each of these cases, this book argues
that they all reflect something fundamental to discussions surrounding
speech: that of the vital link between expression and respect. Indeed, what
cases such as these also all have in common is the deep-seated disagree-
ment they foster in their public reactions. Several cases involve,18 or have
been under pressure to involve,19 legal intervention. Others have invoked
the force of public shaming and social sanctioning, most often via social
media. In others, individuals have been forced to leave behind hard-won
careers.20 Each of these cases, it should be pointed out, involve issues
of social justice. In this sense, it would be facetious to categorize such
conflicts as simple differences of opinion, without considering the impor-
tant influence such expression has on the equal status of individuals from
vulnerable groups. The debate over the proper limits of free expression,
particularly in an increasingly pluralized and divisive world, thus remains a
permanent feature of our social relations. And so one of the central tasks
of this book, then, is to establish the correct boundaries between what is
hate speech, what is disrespectful speech, and what is ‘merely’ offensive.
In so doing, we can hopefully shed some light on the kinds of pressing
normative commitments present in the above cases.
A second aim of this book is to expose the inadequacy of existing anal-
yses of such speech conflicts. Fundamentally, I suggest that these conflicts,
whether they involve toleration of religious difference, racist tweets, or
broadsheet concerns with political correctness,21 are all versions of the
same concern for civility. In contrast to common-use understandings of

18 Vie Lusandu reported the incident to British Transport Police, who, in her view, did
not take her seriously. Following a social media campaign, Lusandu tracked-down a woman
who had intervened, which then allowed her to pursue her claim further. Unfortunately,
no arrests were eventually made.
19 Barry McElduff was reported to and questioned by the PSNI as a result of this case.
See The Belfast Telegraph (2018, January 6).
20 In this case, Barry McElduff, following a great deal of public pressure, stood down
from his position as MP for West Tyrone.
21 As Richard Feldstein and Teresa Brennan so aptly described back in 1997, the
ideology of ‘political correctness’ can be understood as part of a decades-long project
forged by the conservative right as a direct challenge to social justice movements. By
co-opting the ‘rights’ language of progressive causes, the right have constructed a myth
of the looming ‘cultural Marxist’ left whose aim is to destroy the core values of the liberal
state. As Brennan argues, this campaign “has been so successful because it has portrayed
the attempt to uphold the rights of disadvantaged groups as the infringement of individual
rights” (1997, x).
 1 INTRODUCTION 9

the term,22 civility, as it is understood here, demands the intersubjective

expression of equal respect, where this expression is an essential aspect
of equal status. In contrast to prevailing analyses, then, this book argues
that the heightened discord over the acceptable bounds of free expres-
sion is really all part of the same a struggle over the norms of expression.
This means that, rather than understanding such conflicts through the
common lens of a dichotomous rift between freedom and equality,23
we must examine these debates as a fight for a single prize: normative
authority. In other words, we can describe each ‘side’ of such debates
as involving a struggle for recognition as the chief arbiters of the norms
of the surrounding community. Those who automatically reject calls for
greater sensitivity with words, then, often wish to prevent affected groups
from interpreting and shaping the norms of society according to their
own lights. As such, the conservative aim to maintain the status quo in
regards to acceptable forms of speech reflects an attempt at re-affirming a
particular normative order over which they have control.
If I am correct in my negative analysis, then the common tools
employed by liberal theoretical responses to the above cases struggle to
both conceptualize the harm involved in certain kinds of speech, and to
construct a suitable response. In particular, the narrow focus in liberal
theory on the legitimacy of criminal restrictions on speech does not offer
the tools necessary to interpret and respond to harmful speech effectively.
How, then, can we interpret such conflicts? Indeed, some of the most
virulent critics of the prevailing theoretical approach hail from within the
liberal tradition itself. Along such lines, harmful speech, and its contribu-
tion to norms of racism, sexism, and the like, has long been the concern
of feminists, multicultural theorists, and critical theorists, who, in general,
campaign for extension of the categories of legally actionable forms of
harmful speech from within the same liberal framing as above. However,
one core problem with operating from the same theoretical standpoint, as
we will see throughout this book, stems from a difficulty in adjudicating
between legitimate and illegitimate speech claims from the point of view
of social justice. As such, when critique is solely aimed towards the justifi-
cation of criminal restriction, we overlook the need to provide an effective

22 As I will show throughout this book, I distinguish critical civility from civility
as public reason (see Rawls, 1993), etiquette (Elias, 1994), Pettit’s ‘widespread civility’
(1997), and manners (Buss, 1999; Sherman, 2005).
23 See Strossen (1992).
10 S. WHITTEN

response to those ‘in-between’ sorts of harmful speech that also limit the
equal status of society’s members.
In formulating a solution to this conceptual roadblock, this book
argues that a look towards the burgeoning literature on the neo-
republican revival can offer an alternative to liberal framings of speech
conflicts. In particular, neo-republicanism’s commitment to freedom as
non-domination, citizen vigilance, ethos, and relational agency provides a
robust and comprehensive set of theoretical resources with which to inter-
pret and respond to the intersubjective complexity of speech conflicts. In
comparison to the dominant ‘rights-based’ stance of liberal theoretical
approaches to speech, the neo-republican recognition of the ‘dual-track’
components of free and equal status provides an inherently more substan-
tive account of the normative demands of speech conflicts. In particular,
neo-republicanism understands that both vertical state-citizen and hori-
zontal citizen-citizen relations must fulfil certain requirements in order to
secure the equal standing of all individuals. And yet, while the concep-
tual tools provided by the extensive work of neo-republicans exposes
several significant shortcomings in the liberal approach to speech conflict,
the neo-republican framework itself contains a considerable theoretical
gap. For, while centuries of republican thought have urged the necessary
role of citizen behaviour in maintaining a free republic (Pocock, 2003),
contemporary treatments of republicanism have remained somewhat scep-
tical about relying on citizens themselves to secure freedom. For example,
Philip Pettit’s (1997) noted commitment to ‘widespread civility’ (1997,
p. 251) managed by the workings of the ‘intangible hand’ (1997, p. 254)
is also accompanied by a sincere doubt over the reliability of citizens to
behave well. This sentiment reveals a somewhat paradoxical stance. Here,
while Pettit admits that ‘republican laws need the support of republican
norms’ (1997, p. 251), he is also reluctant to specify what these norms
should actually look like for the purposes of securing equal status. As it
currently stands, the above concerns reveal several serious drawbacks for
the neo-republican project.
This reluctance of Pettit’s to endorse specific kinds of citizen behaviour
is a source of contention for several of his critics (Costa, 2009; Krause,
2013), particularly those sensitive to the critical theoretical critiques
described above. The concern here is that, without due attention to the
pervasive and often unconscious ways in which social norms contribute
to the subordinate social status of members of particular groups, then the
free and equal status promised by the political ideal of non-domination
 1 INTRODUCTION 11

cannot be realized. Despite these clear problems, however, the republican

principles of non-domination, civic vigilance, and discursive control show
a great deal of promise for conceptualizing the kinds of unfreedom citi-
zens suffer as a result of occupying certain relations with others. For,
in comparison to those who extol the virtues of speech restriction in
maintaining social harmony, republicanism is staunchly committed to
securing a vibrant public sphere (Skinner, 1990). This focus on the quality
of citizen relations, combined with a strong belief in a diverse public
sphere full of ethical conflict, means that republican theory provides the
ideal starting point for understanding and responding to speech conflict
effectively.

1.3 Book Outline and Structure

Beginning in Chapter 2, I present what I refer to as the prevailing ‘non-
interference paradigm’ in free speech theory. This framing, I suggest,
narrowly centres on a conception of individual freedom that is funda-
mentally hostile to regulation. The curiously close entanglement between
political theoretical conceptions of free speech and First Amendment
jurisprudence has, so I propose, severely limited our understandings of
the kinds of normative claims-making that takes place in the exercise of
free speech, and as such inhibits the possibility of constructing a suitable
theoretical response. This conceptual shortcoming becomes all the more
salient when we examine several core criticisms of the non-interference
paradigm. Crucially, we see in feminist and race theories a concern not
only with the non-neutral framing of the constitution, but with the way
pervasive and deeply entrenched subordinating norms are perpetuated
via harmful speech. As a principle committed to securing both individual
autonomy and a healthy and legitimate democratic sphere, I suggest that
we must look towards an alternative framing of free speech that is capable
of fulfilling its purported aims without threatening the free and equal
status of individuals.
With this goal in mind, Chapter 3 offers a critical view of two liberal
approaches to harmful speech: Jeremy Waldron’s conception of ‘group
defamation’ and liberal toleration. While Waldron’s conception of hate
speech as a threat to assurance takes seriously the way in which speech
impacts individual status, his narrow solution in the form of group
defamation laws fails to offer a suitable response to those threats to assur-
ance that are not legally actionable but which contribute to subordinating
12 S. WHITTEN

status hierarchies. And, while Anna E. Galeotti’s (2002) toleration as

recognition exposes the harms that cultural domination can inflict on
individuals from minority groups, her proposed positive solution is both
politically implausible and philosophically untenable. In-line with Rainer
Forst (2013), then, I show how a toleration grounded on mutual respect
serves as a normatively attractive candidate for understanding the respon-
sibilities citizens have towards one another when dealing with the political
realities of ethical disagreement.
Building on this conception of reciprocal respect as an essential aspect
of dealing with ethical conflict, Chapter 4 argues that such a commit-
ment requires adopting a critical republican perspective. While republican
theory has a long pedigree of a ‘dual-track’ approach to political freedom,
the critical republican alternative rejects the claim that non-domination
alone can combat the pervasive disrespect experienced by those who live
at the sharp end of an unjust status hierarchy. I show that, if we take
seriously the realities of norms of racism and sexism on the equal status
of those affected, then we must actively engage in the critical interroga-
tion of the background norms and culture of a society for their ability to
uphold the ideal of equal respect. Departing from Pettit, then, I present
a critical republican account that takes seriously the role of social equality
in maintaining the equal status of citizens. Crucially, I suggest that crit-
ical republicans should endorse a value of critical civility in addressing the
pervasive expressive harms in society that limit an individual’s free and
equal status.
The next chapter further develops the normative groundwork for the
theory of critical civility. In Chapter 5, I argue that the speech conflicts
outlined throughout the book reflect a struggle over the norms of the
surrounding community, or, in other words, a struggle for recognition. As
such, I suggest that we should understand these contemporary conflicts
over free speech not as a battle between freedom and equality, but as a
struggle for normative authority. Endorsing a model of recognition drawn
from the work of Stephen Darwall (1977), I reject claims that all calls for
recognition are really a question of respect, and instead suggest that many
of the reactive responses involved in speech conflicts are really reactions to
an upset in the normative order, and as thus are a response to a challenge
made against a particular status hierarchy.
Finally, Chapter 6 enhances this conception of a shifting normative
order by exploring the emancipatory potential of civility. I utilize the
accounts of intersubjective acknowledgement of status, non-domination,
 1 INTRODUCTION 13

discursive control, and normative authority from the previous chapters

to arrive at a critical republican account of critical civility, a value which
claims that expressive respect is an essential component of the enjoyment
of free and equal status.

References
Abad-Santos, A. (2018, September 6). Why the social media boycott over Colin
Kaepernick is a win for Nike. Vox. https://www.vox.com/2018/9/4/178
18148/nike-boycott-kaepernick. Accessed 14 Dec 2018.
Asad, T. (2009). Free speech, blasphemy, and secular criticism. In T. Asad, W.
Brown, J. Butler, & S. Mahmood (Eds.), Is critique secular? Blasphemy, injury,
and free speech (pp. 20–63). Fordham University Press.
Brown, A. (2015). Hate speech law: A philosophical examination. Routledge.
Buss, S. (1999). Appearing respectful: The moral significance of manners. Ethics,
109, 795–826.
Costa, M. V. (2009). Neo-republicanism, freedom as non-domination, and
citizen virtue. Politics, Philosophy and Economics, 8(4), 401–419.
Darwall, S. (1977). Two kinds of respect. Ethics, 88, 36–49.
Eisenstein, Z. (1978). Capitalist patriarchy and the case for socialist feminism.
Monthly Review.
Elias, N. (1994). The civilizing process, vol. I. The history of manners. Blackwell.
Feldstein, R., & Brennan, T. (1997). Political correctness: A response from the
cultural left. University of Minnesota Press.
Forst, R. (2013). Toleration in conflict: Past and present. Cambridge University
Press.
Galeotti, A. E. (2002). Toleration as recognition. Cambridge University Press.
Garton-Ash, T. (2016). Free speech: Ten principles for a connected world. Atlantic
Books.
Graham, R. (2018, June 26). Civility can wait; the fight for democracy cannot.
The Boston Globe. https://www.bostonglobe.com/opinion/2018/06/26/
civility-can-wait-fight-for-democracy-cannot/heJCI3lBm9yT4CvgM4LBFO/
story.html. Accessed 14 Nov 2018.
Herald Sun reprints Serena Williams cartoon: ‘Welcome to the PC world’. (2018,
September 12). Al Jazeera. https://www.aljazeera.com/news/2018/09/her
ald-sun-reprints-serena-cartoon-pc-world-180912101332878.html. Accessed
15 Dec 2018.
Hidden tribes: A study of America’s polarized landscape. More in Common.
https://static1.squarespace.com/static/5a70a7c3010027736a22740f/t/
5bbcea6b7817f7bf7342b718/1539107467397/hidden_tribes_report-2.pdf.
Accessed 26 Dec 2018.
14 S. WHITTEN

Huntington, S. P. (1997). The clash of civilizations and the remaking of the world
order. Simon & Schuster.
Klausen, J. (2009). The cartoons that shook the world. Yale University Press.
Krause, S. (2013). Beyond non-domination: Agency, inequality and the meaning
of freedom. Philosophy and Social Criticism, 39(2), 187–208.
Maxine Waters encourages supporters to harass Trump administration officials.
(2018, June 25). CNN Politics. https://edition.cnn.com/2018/06/25/pol
itics/maxine-waters-trump-officials/index.html?utm_medium=social&utm_
source=twCNNp&utm_content=2018-06-25T13%3A11%3A43&CNNPoliti
cs=Tw. Accessed 10 Sept 2018.
Modood, T. (2006). The Danish cartoon affair: Free speech, racism, Islamism
and integration. International Migration, 44(5), 3–62.
Oliver, J. D. (2012). The meaning of nice: How compassion and civility can change
your life and the world. Berkley Books.
Pettit, P. (1997). Republicanism: A theory of freedom and government. Oxford
University Press.
Pocock, J. G. A. (2003). The Machiavellian moment: Florentine political thought
and the Atlantic Republican Tradition. Princeton University Press.
Police probe clip of Sinn Fein MP with Kingsmill loaf on anniversary of
massacre. (2018, January 6). The Belfast Telegraph. https://www.belfastteleg
raph.co.uk/news/northern-ireland/police-probe-clip-of-sinn-fein-mp-with-
kingsmill-loaf-on-anniversary-of-massacre-36463386.html. Accessed 14 Dec
2018.
Rawls, J. (1993). Political liberalism. Columbia University Press.
Ronson, J. (2015). So you’ve been publicly shamed. Riverhead Books.
Rushdie, S. (1988). The satanic verses. Penguin Books.
Salzmann, K. J. (2018, July 10). The civility wars. National Review. https://
www.nationalreview.com/2018/07/civility-sarah-huckabee-sanders-red-hen-
incident-starts-debate/. Accessed 5 June 2019.
Sherman, N. (2005). Of manners and morals. British Journal of Educational
Studies, 53(3), 272–289.
Skinner, Q. (1990). The republican ideal of political liberty. In G. Bock, Q.
Skinner, & M. Viroli (Eds.), Machiavelli and republicanism (pp. 293–309).
Cambridge University Press.
Stanley, J. (2015). How propaganda works. Princeton University Press.
Steve Bannon dropped from New Yorker festival after invite sparks anger.
(2018, September 4). The Guardian. https://www.theguardian.com/us-
news/2018/sep/03/steve-bannon-new-yorker-festival-dropped. Accessed 2
Dec 2018.
Strossen, N. (1992). Balancing the rights to freedom of expression and equality:
A civil liberties approach to hate speech on campus. In S. Coliver (Ed.),
 1 INTRODUCTION 15

Striking a balance: Hate speech, freedom of expression and non-discrimination.

University of Essex.
Sullivan, K. M. (1994). Free speech wars. SMU Law Review, 48(1), 203–214.
Thompson, S. (2012). Freedom of expression and hatred of religion. Ethnicities,
12(2), 215–232.
University of Kent student union issues fancy dress guidelines. (2018, October
11). BBC News. https://www.bbc.co.uk/news/uk-england-kent-45826809.
Accessed 1 Dec 2018.
Waldron, J. (2012). The harm in hate speech. Harvard University Press.
Ward, I. (2017). Democratic civility and the dangers of niceness. Political
Theology, 18(2), 115–136.
Woman and 11-year-old son terrified as four men hurl racist abuse on crowded
Leeds train. (2018, April 26). The Independent. https://www.independent.
co.uk/news/uk/home-news/racist-abuse-woman-train-son-leeds-vie-lus
andu-men-brexit-racism-a8323716.html. Accessed 12 Oct 2018.
 CHAPTER 2

Questioning the Non-Interference Paradigm

2.1 Introduction
On April 3, 1963, Dr. Martin Luther King Jr. launched a mass anti-
segregationist campaign of non-violent direct action in Birmingham,
Alabama. King’s Southern Christian Leadership Conference (SCLC) had
joined forces with the local Alabama Christian Movement for Human
Rights (ACMHR) to engage in a series of mass protests, sit-ins, boycotts,
marches, ‘kneel-ins’ at white churches, and speeches, leading to the
arrest of hundreds of protestors and student activists. When the jails
started to become overcrowded, the police department, led by the infa-
mous Commissioner of Public Safety, Sheriff Eugene ‘Bull’ Connor,1
reacted with characteristic ruthlessness. Both mass imprisonment and
police brutality had failed to deter campaigners, so Connor obtained an
injunction banning some of the campaign’s most active members from
engaging in further action, simultaneously raising the bail bond from
$200 to $1500.2 It was this injunction that eventually led to King’s
imprisonment on April 12, and, consequently, to his authoring of Letter
from Birmingham Jail.

1 King himself described Connor as “a racist who prided himself on knowing how to
handle the Negro and keep him in his ‘place’” (King, 1964, p. 49).
2 The equivalent of $10,000 in 2020.

© The Author(s), under exclusive license to Springer Nature 17

Switzerland AG 2022
S. Whitten, A Republican Theory of Free Speech,
https://doi.org/10.1007/978-3-030-78631-1_2
18 S. WHITTEN

The restrictions placed on protestors were clear violations of their First

Amendment rights. Due to a combination of a lack of wider political
support, low funds, and a strong pro-segregationist sentiment among
Alabama judges, however, overturning charges was not an easy task.
At every turn, it seemed that efforts to make the voices of protestors
heard were blocked or undermined. Some of the greatest barriers to
change came from the actions and inactions of the white residents of
Birmingham. Whites criticized protestors for engaging in direct action,
rather than pursuing desegregation through the ‘proper’ legal channels.
Protestors were spat on while taking part in sit-ins, and merchants refused
to serve Blacks, even if they were not directly involved in the movement.
In general, however, very many white Americans just did nothing.
The fight against structural injustice3 and freedom of speech are thus
inexorably linked. Social hierarchies, such as those that rank individuals
according to their race, gender, religion, ethnicity, or sexuality, are made
up of a complex and pervasive web of norms, practices, roles, and social
processes that inform all human relations, most often in covert and unde-
tectable ways. The barriers that served to block attempts made by Black
activists to exercise their First Amendment rights not only confirms the
fact that freedom of speech is central to social change, but that the exer-
cise of such rights depends just as much on shifting social norms as it
does on ensuring that the law is followed correctly. The white supremacy

3 Here, I borrow from Sally Haslanger (2015, p. 2) the following description of how
structural injustice functions as a form of oppression:
1. Racism, sexism, and the like are to be analyzed, in the primary sense, in terms of
unjust and interlocking social structures, not in terms of the actions and attitudes
of individuals.
(a) Although individuals may have racist or sexist attitudes, these are neither
necessary nor sufficient for race or sex oppression.

(b) The normative core of what is wrong with racism/sexism lies not in the
‘bad attitudes’ of individuals but in the asymmetrical burdens and benefits and
inegalitarian relationships that societies impose on such groups.

2. Correcting the wrongs of racism, sexism, and the like is not best achieved by
focusing on the ‘bad attitudes’ of individuals.
(a) The structural injustices may persist even when attitudes change.
(b) People are resentful when they are blamed for problems much bigger than
themselves. Resentful people are resistant to change.
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 19

that dominated Birmingham in the 1960s worked precisely because it was

built on a rigid set of social norms that infiltrated every corner of society.
These norms caused the white population not only to ignore the injus-
tice that was happening all around them, but to not see it in the first
place. The white citizens of Alabama could not understand why Blacks
were so angry, why they didn’t just make their grievances known through
regular, democratic procedures, or why they couldn’t learn to get along
with and be ‘civil’ to their white neighbours. It was the existence of these
widespread norms, then, that for a long time prevented any real change
from taking place. As King forcefully argued in his Letter:

I must confess that over the past few years I have been gravely disappointed
with the white moderate. I have almost reached the regrettable conclusion
that the Negro’s great stumbling block in his stride toward freedom is
not the White Citizen’s Counciler or the Ku Klux Klanner, but the white
moderate, who is more devoted to ‘order’ than to justice; who prefers a
negative peace which is the absence of tension to a positive peace which is
the presence of justice [...]. (King, 1963)

Despite the key role social norms play in our ability to exercise speech,
however, the vast majority of debates about freedom of speech take non-
interference as a strong default starting position. On this view, I enjoy free
speech when the state does not infringe upon or censor my speech in any
way. Challenges to this position, whether from a concern with violence,
corruption, incitement, obscenity, equality, or respect, must therefore
mount a considerable case.4 This fact becomes especially salient when
we look at the relevant literature. As any pupil of freedom of speech
will soon discover, the academic landscape upon which such debates
have taken place, at least since the 1970s, has been one dominated5 by

4 On this point, Frederick Schauer, in drawing attention to the distinct kind of liberty
present in free speech, has stated that: “Under a Free Speech Principle, any governmental
action to achieve a goal, whether that goal be positive or negative, must provide a stronger
justification when the attainment of that goal requires the restriction of speech than when
no limitations on speech are employed” (1984, pp. 7–8).
5 See Alexander and Horton (1984), Altman (1993), Baker (1989), Blasi (1977),
Bleich (2013), Bollinger (1986), Brettschneider (2012a, 2012b), Brison (1998, 2000),
Chemerinsky (2000), Crenshaw et al. (1993), Delgado (1982), Delgado and Lederer
(1995), Delgado and Stefancic (2012), Dworkin (1985), Epstein (1987, 1992), Epstein
et al. (1992), Fiss (1996), Gould (2005), Green (1991), Greenawalt (1989), Hare and
Weinstein (Eds.) (2009), Hurd and Moore (2004), Ingber (1984), Langton (1990), Lewis
20 S. WHITTEN

conflicts surrounding the First Amendment.6 One of the key reasons for
this, so it seems, stems from the compelling robustness of this unwa-
vering free speech principle. As most other world states introduce laws
and ratify agreements promising to protect some of society’s most vulner-
able members from the indignities of hate speech, the United States, and
much of liberal political theory, remains steadfast in its commitment to
this titan of liberal thought.
But the cracks are beginning to show on this once unshakeable ground.
Increasingly, the non-interference ideal of free speech must defend itself
against the charge that it is not only no longer fit for purpose, but that
its founding premises are ideologically unsound.7 To Stanley Fish, we can
dismiss with the ideal as a broken fantasy, mis-sold on an emancipatory
promise that can never be fulfilled. Instead, so Fish argues, we should
think of free speech as simply a ‘political prize’ (1994, p. 102), for which
the powerful scramble in order to maintain control. The inescapably
political nature of free speech, however, does not mean that we should
dispense with the concept altogether. The problem, as Fish expands on
in The First (2019), is that we continue to pretend that concepts such

(2007), Lukianoff (2012), MacKinnon and Dworkin (1988), Massaro (1991), Matsuda
(1989), Peters (2005), Post (1991, 2011), Redish (1984), Sarat (Ed.) (2014), Scanlon
(1972, 1979), Schauer (1984), Strossen (2000, 2016), Sullivan (1994), Sunstein (1986),
Waldron (2010, 2012), and Weinstein (2011).
6 The First Amendment of the United States Constitution (U.S. Const. amend. I)
reads as follows: “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.”
7 The following are some of the various critiques of an unwavering, non-interference
commitment to free speech. Feminist treatments include Adelman et al. (2011), MacK-
innon (1984, 1993), MacKinnon and Dworkin (1988), Maitra and McGowan (2007,
2012), McGowan (2005), and West (2003). For the inefficiency of the non-interference
account for dealing with racist hate appropriately see Bell (1992), Crenshaw (1988, 1989,
1990), Crenshaw et al. (1993), Delgado (1982), Delgado and Lederer (1995), Delgado
and Stefancic (2012), Bhatia et al. (Eds.) (2018), Matsuda (1989), Lawrence (III) (1990),
Maitra and McGowan (2009), McGowan (2012), Strauss (2007), and Tirrell (2012).
For criticisms of a non-interference framing from a concern with the effects of hate
speech on religious and cultural minorities see Appiah (2012), Asad (2009), Bonotti
(2017), Carens (2006), Jones (2011), Laegaard (2007), Modood (1990), Modood et al.
(2006), Mosquera (2017), Parekh (2012), Pinto (2010), Rostbøll (2009), Saeed (2007),
Taylor (1989), Thompson (2012). For general liberal critiques see Alexander and Horton
(1984), Chemerinsky (2000), Fish (1994), Gelber (2002), Hurd and Moore (2004),
Kahan (2001), Maitra (2012), Nielsen (2012), Simester and Von Hirsch (Eds.) (2006),
and Weaver (2011).
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 21

as free speech, and in particular the First Amendment, are apolitical, that
they are neutral, detached, abstract entities that hover above our social
and political conflicts, ready to reveal the Truth if only we adhere to its
procedures correctly. In reality, according to Fish, free speech is.

a grab bag of analogies, invented-for-the-occasion arguments, rhetorical

slogans, shaky distinctions, and ad hoc exceptions to those distinctions,
all combining to make it an artefact of the very politics it supposedly
transcends. (2019, p. 4)

Despite these misgivings regarding the emancipatory potential of a free

speech right, the literature defending free speech continues to provide a
valuable resource for understanding why expression is something worth
caring about. Beginning with an overview of several influential Supreme
Court cases, then, this chapter will present the core reasons why we ought
to approach state infringements on our freedom of speech with caution.
The unique prominence of the U.S. case reveals two things. First, it
draws our attention to the dominant framing of speech conflicts as one
of a struggle between the state and its citizens. The image presented by
this framing is one in which the state, constrained by the reins of the
constitution, must provide for citizens the maximum possible sphere of
freedom within which to express themselves. On this view, I am maxi-
mally free in my exercise of speech when the state does not censor me,
and when it does not prevent me from expressing any thought, opinion,
or belief to anybody or nobody of my choice (Epstein, 1987, p. 54). The
second, related take away is that, because of this particular framing, most
of what is written on free speech has assumed a, seemingly irreconcilable,
dichotomy between the goals of freedom and those of equality for all
(Strossen, 2016).
However, while I endorse the claim that free speech should be
protected as a core political principle, I reject the narrow framing of
free speech debates as an issue concerning the limits of legitimate state
restriction only. In contrast, I argue that we can better uphold freedom
of speech’s fundamental goals, such as democratic legitimacy and indi-
vidual autonomy, by taking a broader perspective on what it means for
these goals to be realized. In paving the way towards Chapter 3, then,
the purpose of this chapter is to expose a fundamental flaw in prevailing
understandings of free speech conflicts, thereby endorsing a more expan-
sive and nuanced understanding of the ways in which our freedom of
speech is already necessarily curtailed by the non-neutral framing of the
non-interference standard.
22 S. WHITTEN

What, then, are the normative underpinnings of the non-interference

paradigm, and do they stand up to critical scrutiny? Does a commitment
to a democracy principle necessarily entail non-interference in speech rela-
tions? To answer these questions, I will first (Sect. 2.2) define the meaning
of the ‘non-interference paradigm’ as the prevailing starting point in free
speech theory. Following this, I assess (Sect. 2.3) some of the most promi-
nent First Amendment cases of the U.S., and show how, while the rest
of the world grows increasingly open to hate speech regulation, the U.S.
has held ever-tighter to the ‘free marketplace of ideas’ ideal.
The philosophical foundations of the First Amendment will be revealed
by examining two key justifications for the non-interference position:
autonomy and democracy (Sect. 2.4). Despite a purported staunch
commitment to these two ideals, I then show how (Sect. 2.5) the non-
interference approach fails to uphold these promises in the face of unjust
social hierarchies, such as those of racism and sexism. In concluding,
I argue that a free speech aimed at promoting both democracy and
autonomy must move beyond the non-interference paradigm towards an
account that combats those pervasive norms that inhibit an individual’s
ability to exercise voice.

2.2 The Non-Interference Paradigm

In this book, I refer to the dominant discourse of free speech debates
as one that reflects what I call the non-interference paradigm. According
to this view, I enjoy the freedom to express myself when the state, as
far as possible, does not infringe upon or censor my expression (Chafee,
1946, p. 559). Along such lines, much of the liberal theoretical literature
on free speech is centred on the legitimacy of interference, whether that
interference is called for in order to protect individuals from harm, secure
the smooth-running of democracy, or to protect the commercial interests
of private companies.8 The price for speech interference is high: when we
give up some of our expressive freedoms, even for the greater good, we
are nonetheless ‘cutting off’ a vital channel through which we exercise
our autonomy (Scanlon, 1972). Those who wish to argue for regulation
of speech, then, must be prepared to make a compelling case.

8 A few prominent examples include Baker (1989), Bollinger (1986, 2010), Dworkin
(1985), Hare and Weinstein (Eds.) (2009), Fiss (1996), Greenawalt (1989), Heinze
(2016), and Post (1991).
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 23

This non-interference framing has a long pedigree in liberal theory.

John Milton, a key influence to the drafters of the First Amendment,
famously pleaded in his Areopagitica (2014) to ‘Give me the liberty to
know, to utter, and to argue freely according to conscience, above all
liberties’ (1894, p. 50). Immanuel Kant,9 similarly, refers to free speech
as ‘the most innocuous freedom’ (1970, p. 55), and one that enables
individuals to engage in the essential process of public reason. John Rawls
argues for freedom of speech as one of the basic liberties, on the grounds
that it is essential for both political legitimacy (1999, p. 215) and for
developing one’s own conception of the good (2005, p. 19). Joseph Raz
presents freedom of speech as a ‘public good’, and passionately claims
that to limit such a freedom ‘insults the censored, denies their rationality’
and ‘treats them as a means rather than an end’ (1991, p. 305).
For those who adopt the non-interference paradigm, then, the weight
of freedom of speech is so great that we must approach any such state
encroachments with extreme caution. Without this protection, we risk
not only our ability to keep power in check, to form and revise our own
vision of the good, and to secure democratic legitimacy,10 but one of the
core elements of what it means to be human. As I will show in the next
section, First Amendment constitutionalism wholeheartedly endorses, and
has played a key role in the evolution of, this non-interference paradigm.
Examining the literature on this U.S. case in more detail will thus do
two things: (i) Allow us to understand in greater detail some of the core
political justifications for maintaining a position of non-interference in
conflicts over free speech; and (ii) Help to unpack some of the key norma-
tive commitments involved in debates surrounding the limits of freedom
of speech.

9 In his “Theory and Practice” essay, Kant argues that “freedom of the pen…is the
sole palladium of the people’s rights. For to want to deny them this freedom is not
only tantamount to taking from them any claim to a right with respect to the supreme
commander (according to Hobbes), but is also to withhold from the latter…all knowledge
of matters that he himself would change if he knew about them and to put him in
contradiction with himself” (1999, p. 304).
10 On the importance of free speech for democratic legitimacy see Meiklejohn (1948),
and Dworkin (2009).
24 S. WHITTEN

2.3 The First Amendment

and the Battle for the Supreme Court
In order to understand the shortcomings of the non-interference
approach, we must first briefly unpack the historical development of the
First Amendment in U.S. jurisprudence. Doing so will reveal the norma-
tive ideals that inspired this core principle of the constitution, while
tracking the way in which interpretations of these ideals have been contin-
ually re-interpreted and developed since the drafters’ initial conception.
Understanding the significance of U.S. constitutional theory in shaping
free speech debates reveals both illuminating and frustrating conclusions.
In particular, the pairing of a profound scepticism of speech regulation
with a sincere commitment to equal participation exposes an oftentimes
conflicting normative outlook.11
Legal scholar Owen Fiss (1996) expresses this contradiction as one
involving a tension between two competing philosophical interpretations
of speech. The courts, so Fiss argues, have gradually come to endorse
what he calls a ‘libertarian’ conception of free speech, one that promotes
the exercise of autonomy as the motivating principle for non-interference.
Critical of this view, Fiss argues that this particular stance is a regrettable
reflection of the ‘individualistic ethos that so dominates our popular and
political culture’ (1996, p. 3), and as such is one that threatens the core
egalitarian ideals of the liberal project. Calling for a return to the ‘demo-
cratic’ conception of legitimate regulation, which is motivated instead by a
concern with the wider social good of free speech, Fiss advises that ‘some-
times we must lower the voices of some in order to hear the voices of
others’ (1996, p. 18). In practice, this non-interference focus has meant
that, since the time of the Civil Rights Movement of the 1960s, the
courts have struggled with the seemingly irresolvable tension between the
protection of the equal status of some of the country’s most vulnerable
citizens, and the preservation of one of the constitution’s most prized
ideals.
Unsurprisingly, the prominence of these constitutional debates in
collective understandings of free speech has meant that much of the liter-
ature on the topic has centred on the normative legitimacy of some

11 Some theorists who hold this somewhat conflicting commitment to both equality and
non-interference include Schauer (1984), Scanlon (1972, 1979), and Dworkin (1985).
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 25

of the court’s most eminent cases.12 Here, we see the core princi-
ples of present-day First Amendment application parallel some of the
most famous arguments for free speech in liberal theory. The ‘clear
and present danger’ test, drawn in 1919 from Justice Oliver Wendell
Holmes’s concurring opinion in Schenck v. United States ,13 placed limits
on the justifiable reach of the criminal law in punishing the expression
of ideas.14 In particular, this principle was specifically crafted to avoid
betrayal of constitutional commitments to content-neutrality,15 consid-
ered key in protecting the right for individuals to express themselves
without state censorship or intervention. Conversely, in Abrams (1919),
and in stressing the democratic role free expression plays in protecting
the ‘free marketplace of ideas’, Holmes negated his previous application
of the test, instead placing an even-higher burden of proof on the kind
of speech that satisfied the test.16 The ‘marketplace’ adage, iconic in its
effect on shaping popular understandings of free speech,17 is built on

12 For example, see Dworkin (1985, 1991, 1992), Chemerinsky (2000), Brison (2000),
Bleich (2013), Blasi (1977), and Baker (1989).
13 See Schenck v. United States 249 U.S. 47 (1919). In this case, the defendant was
prosecuted for printing and distributing anti-draft leaflets. The Supreme Court upheld the
conviction, claiming that the leaflets could unduly influence men against signing up for
the draft. This was considered egregious enough to provide a “clear and present danger”
to the state. It was in his opinion where Holmes also famously stated: “The most stringent
protection of free speech would not protect a man in falsely shouting fire in a theater and
causing a panic.”
14 Justice Holmes set a ground-breaking precedent with the ‘clear and present danger’
test that served to undo 120 years of inconsistency in court interpretations of the First
Amendment. This decision by Holmes, however, has since been criticized for failing to
uphold the drafter’s intentions by being unduly swayed by the social circumstances of the
time. See Gibson (1986) for an extensive analysis of this debate.
15 Content-neutrality in the constitutional context means both that: (i) “government
cannot regulate speech based on the ideology of the message”; and (ii) “government
cannot regulate speech based on the topic of the speech” (Chemerinsky, 2000, p. 251).
16 This case considered the conviction of two men who, as in Schenck, were charged
under the Sedition Act due to the apparent threat they posed to the U.S. state. The
two men had printed and thrown two pro-communist leaflets from the windows of a
building in New York City, in which they were critical of U.S. involvement in the Russian
Revolution and the decision to use American troops in the war effort. In overturning the
conviction, the justices argued that any conviction of the men would have been (wrongly)
based on the content of their beliefs: an unjust betrayal of the content-neutrality principle.
17 The “free marketplace” metaphor has been consistently critiqued for its conceptual
incoherency. Nonetheless, it still remains one of the core arguments used in defence of
26 S. WHITTEN

several core Millian (Jacobson, 2005; Mill, 2004) defences of free speech,
including the pursuit of truth, autonomy, democratic equality, legitimate
state interference, and value-neutrality.18 Here, Holmes states:

[M]en… may come to believe even more than they believe the very foun-
dations of their own conduct that the ultimate good desired is better
reached by free trade in ideas- that the best test of truth is the power
of the thought to get itself accepted in the competition of the market, and
that truth is the only ground upon which their wishes safely can be carried
out. That at any rate is the theory of our Constitution. (Abrams , 250 U.S.
at 630)

According to the drafters, the government could not be depended upon

to combat false ideology.19 Therefore, in order to avoid the inevitable
tyranny that arises in countries that suppress speech, we must allow the
citizens to ‘work it out’ among themselves. On this view, legitimate
government policy and law can only be achieved by allowing the free
exchange of ideas: any coercion in the process of deliberation necessarily
impacts the stability of the state. In another prominent case, Whitney v.
California (1927),20 Justice Louis Brandeis, concurring with Holmes’s
marketplace idea, stated along similar lines that,

It is hazardous to discourage thought, hope and imagination; that fear

breeds repression; repression breeds hate; that hate menaces stable govern-
ment; that the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies. (Brandeis, 375)

Like the ‘clear and present danger’ test, Justice Frank Murphy’s definition
of ‘fighting words’ describes another set of language that is not considered

freedom of speech in popular debate. For a compelling argument for the implausibility of
the free marketplace ideal see Ingber (1984).
18 Mill (2004).
19 Along such a vein, Benjamin Franklin (1722) argued that “Without Freedom of
Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty,
without Freedom of Speech.” Similarly, in The Federalist Papers (2014), James Madison
notes: “Liberty is to faction what air is to fire, an aliment without which it instantly
expires.”
20 Whitney v. California 274 U.S. 357 (1927).
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 27

worthy of protection. These words,21 described by the law in question as

those that are ‘offensive, derisive, and annoying’, and which are reason-
ably expected to provoke the ‘ordinary citizen’ to engage in violence,
belong to the category of ‘low value’ speech that is considered to be of
no worth to the democratic project. Here, the democratic rationale allows
courts to justify non-protection on the basis of the crude content of the
speech in question, provided it poses a risk to imminent violence against
another person or persons.22
The inconsistent application of the fighting words doctrine, in partic-
ular its categorization of certain forms of speech as ‘low value’ or ‘useless’
for the purposes of democratic legitimacy, resulted in a series of great
divides among Supreme Court Justices during the latter half of the
twentieth century (Chemerinsky, 2000). Note, however that it is not
unremarkable that the majority of these divisive cases took place alongside
the growth of the Civil Rights Movement.23 In Beauharnais v. Illinois
(1952), for example, the Court upheld a conviction in which a white
defendant was accused of distributing leaflets against racial integration in
the surrounding neighbourhood. The original statute, which aimed to

21 This case, Chaplinsky v. New Hampshire (315 U.S. 568 (1942)), involved a verbal
assault that took place between Walter Chaplinsky, a Jehovah’s Witness, and a local town
marshal. At the time leading up to the exchange, Chaplinsky had been distributing pro-
Jehovah’s Witness leaflets that were critical of other religions. When the marshal warned
him not to make a disturbance, the resulting war of words led Chaplinsky to calling
the marshal “a God-damned racketeer” and “a damned Fascist”. He was subsequently
arrested and charged with a local law that prohibited the use of low-value speech that
threatened the public order. Chaplinsky’s defence, then, was that his conviction violated
his First Amendment rights to freedom of speech. The Court rejected his claim using this
‘fighting words’ category of unprotected speech.
22 Describing the ‘low value’ of this speech, Justice Murphy stated that: “[S]uch utter-
ances are no essential part of any exposition of ideas, and are of such slight social value
as a step to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality” (Chaplisnky, 315 U.S. at 572).
23 One of the central aims of the critical race theory movement in U.S. jurisprudence
has been to highlight the racially biased and non-neutral framing of the constitution. The
work of critical race theorists was originally motivated by an apparent ‘slowing down’ of
racial progress since the Civil Rights Movement, and, alongside the work of revisionist
historians, aimed to deconstruct the underlying foundations of the U.S. legal framework
in order to expose the systemic forms of prejudice that were significantly impacting efforts
to secure a more equal society. Key texts include Delgado and Stefancic (Eds.) (2012),
Crenshaw (1988, 1991), Matsuda (1989), Bell (1992), Lawrence (1990), and Williams
(1987).
28 S. WHITTEN

protect groups from libel in the form of ‘depravity’, ‘criminality’, or ‘lack

of virtue’, was deemed constitutional by the majority opinion. Again, and
citing the ‘low value’ of the speech in question, the Court took seriously
the threat to civil unrest that may have resulted from the distribution of
such material, a decision extrapolated from the historical context of racial
tension in Illinois. The Courts, by using a ‘balancing of harms’ exercise,
decided that the potential social disorder, accompanied by the limited
threat to democracy found in restriction of such low-value speech, meant
that the speech did not qualify for constitutional protection. It was thus a
fear of social disorder, rather than the equal status of the African-American
community, that ultimately led the court’s decision.24

2.4 Philosophical Defences

of the Non-Interference Ideal
In the previous section, I unpacked several iconic U.S. Supreme Court
decisions believed by many to reflect the true ideals of free expression.
As we saw, however, the non-neutral interpretations of what kinds of
speech count as worthy of protection have been heavily influenced by
political and ideological pressures, and as such fail to deliver the core
promises of the constitution. In exploring further the question of whether
or not this non-interference ideal is fit for purpose, I will now examine
the foundational normative principles that motivate the non-interference
account. Importantly, First Amendment jurisprudence’s commitment to
the non-interference paradigm is founded on a very specific interpreta-
tion of certain core liberal principles. In this section, I provide a brief
sketch of two of the most prominent of these principles: the argument
from democracy and the argument from autonomy. Doing so will not
only expose the non-interference framing of the constitution as failing to
uphold these core normative commitments, but will show why an alter-
native framing is required if we are truly committed to upholding the free
and equal status of citizens.

24 For an extended analysis on the role of situational pressures on First Amendment

applications see Bleich (2013).
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 29

2.4.1 Two Defences: Democracy and Autonomy

Without free speech there can be no democracy. As the common itera-
tion of the argument from democracy goes, the growth and progression
of a healthy democracy depends on the existence of a diversity of view-
points, all clashing with and shaping one another in the ‘free marketplace
of ideas’. In political theory, the argument from democracy, articulated
both by John Stuart Mill (2004) and more recently by theorists such as
Cass R. Sunstein25 (2017) and Thomas Scanlon (1972), supports this
idea that, in order for a healthy democratic state to flourish, we must
provide citizens a free intellectual space within the public sphere to debate
and discuss the ideas most important to them.26 Only then can individuals
come to a reasoned, reflective conclusion formed from the kind of fleshing
out of political ideas found in public discourse. As ideas can only come
to fruition through the act of public discourse itself, the most appropriate
way to ensure a legitimate democratic society is to afford citizens the
freedom to argue about those ideas among themselves.27
The argument from democracy thus contains two central (and related)
elements: (1) Freedom of speech is necessary for a legitimate democracy
that reflects the interests of the people; and (2) That, without freedom of
speech, we have lost our strongest weapon against the potentially corrupt
and tyrannical power of the government.28 The argument from democ-
racy thus provides the foundations for a further core democratic freedom:
the right to lobby our political representatives, who are charged with
ensuring that those ideals are effectively channelled through Parliament,
further shaping policy reflective of the interests and needs of the public
at large. As this political engagement is only possible when we are free to
express our claims free from censorship or governmental intervention, the
two freedoms are thus inextricably linked. A freedom for individuals to be
able to deliberate about their ideas and interests, then, is a fundamental
component of democratic political life. As Ronald Dworkin notes:

25 Sunstein’s (2017) analysis here focuses specifically on the role of the internet as an
extension of the public sphere.
26 This sentiment was notably illustrated in Gertz v. Robert Welch, Inc. (418 U.S. 323
(1974)), in which Justice Powell Jr. poignantly stated that, under the principles of freedom
and equality undergirding the First Amendment “there is no such thing as a false idea.”
27 For a critique of this view, see Reid (2019).
28 I am reminded here of Amartya Sen’s reflection that “no famine has ever taken place
in the history of the world in a functioning democracy” (1999, p. 16).
30 S. WHITTEN

[E]ach citizen has not just a vote but a voice: a majority decision is not fair
unless everyone has had a fair opportunity to express his or her attitudes
or opinions or fears or tastes or presuppositions or prejudices or ideals, not
just in the hope of influencing others…but also just to confirm his or her
standing as a responsible agent in, rather than a passive victim of, collective
action. (2009, vii)

Accompanying this first democratic justification, and one that is relayed

consistently in First Amendment jurisprudence, is a scepticism regarding
the relationship between individuals and the state, including a fear of
state paternalism and ‘moral policing’.29 This fear reflects a more general
concern with governmental regulation of matters concerning individual
belief, and was one of the driving forces behind freedom of speech theory
towards the end of the seventeenth century (Meiklejohn, 1961). Along
such a vein, many fear that without an ‘absolute’ right to free speech, the
state will impose increasingly tyrannical—yet broadly politically popular-
restrictions on our modes of expression. This feature of free speech theory
frequently underlines those decisions of U.S. courts to uphold the narrow
guidelines of the First Amendment, thus showing how these constitu-
tional interpretations are reflective of the judiciary’s reverence of state
neutrality.
Freedom of speech is also necessary for a free press. This is especially
important in maintaining the transparency of both the government and
other powerful institutions. On this point, Thomas Jefferson famously
noted in a letter that,

The basis of our governments being the opinion of the people, the very
first object should be to keep that right; and were it left to me to decide
whether we should have a government without newspapers, or newspapers
without a government, I should not hesitate a moment to prefer the latter.
(1787, January 16)

In other words, without reasonably free access to the workings of such

public and private powers, individuals will be denied the information

29 This argument is invoked most frequently in criticisms of pornography regulation.

Those who reject the categorization of pornography as a kind of action in general accept
its categorization as a kind of ‘obscenity’, which, using Feinberg’s (1984) typology,
is restriction on the grounds of “moralistic paternalism.” See Harm To Others, Ch.2
‘Harmless Wrongdoing’.
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 31

required to make reasoned and well-informed decisions about who they

choose to engage with in the political sphere, increasing the possibility of
corruption and democratic illegitimacy. This further democratic argument
pays close attention to the requirement that citizens are afforded free
expression in order to keep governmental and private powers in check,
holding them to account through consistent exposure to popular scrutiny.
Under this umbrella of political arguments for a free speech principle,
we also find Mill’s defence of freedom in the pursuit of intellectual clarity
or ‘the truth’ (2004, p. 87). As in the argument for democratic legiti-
macy, this defence also champions free public discourse among citizens.
The ideas discussed in public discourse are essential, not just to produce
ideas reflective of the views and opinions of the citizens themselves, but
in order to refine and strengthen existing ideas about the world. Without
such free expression, so the argument goes, we would be denied access to
the intellectual creative output of others, produced only when they can
participate in debate, create art, and publish literature free from the inter-
ference of others. Censorship in these fields not only denies the speaker
autonomy, but also removes the potential listener’s access to the thoughts
and ideas of others. Here, it is worth including one of Mill’s most memo-
rable quotes regarding the value of diversity of thought, where he states
that:

If all mankind minus one were of one opinion, mankind would be no more
justified in silencing that one person, than he, if he had the power, would
be justified in silencing mankind. (2004, p. 87)

Freedom of speech also encourages the toleration of diversity (Bollinger,

1986; Mill, 2004). This argument claims that individuals must be exposed
to a wide range of views in order to develop the capacities required for
the toleration of diverse beliefs.30 As this diversity argument addresses the
problem of disagreement regarding visions of the good, it is often used
by those who deny that certain forms of speech necessarily conflict with
the goals of equality (Strossen, 2000). In a society governed by such a
principle, the formal equality afforded to individuals via the mechanism
of the law (in theory) allows for a wide range of worldviews to engage
with one another in the public sphere, free from the external interference
of the state.

30 See also Lewis (2007).

32 S. WHITTEN

Critics of hate speech laws often invoke this argument from toleration
when defending their position. Here, hate speech is best tackled not by
expanding the sphere of restriction but by engaging in ‘more speech’,
offering counter-arguments, or endorsing ‘speaking back’ policies, all to
avoid the use of the ‘iron hand’ of the law to ban what it believes to be
an unacceptable act of expression (Gelber, 2002).
Advocates of the toleration principle also focus on the benefits of
the creative conflict found in intense political debate, which includes
the idea that continued exposure of individuals to the differing polit-
ical and cultural influences of others results in the opening of minds and
the nurturing of intellectual progress. In an increasingly diverse society
characterized by a plethora of different worldviews, we must all work
to increase our understanding and acceptance of cultural and political
difference. Along such a vein, Lee Bollinger notes how free speech,

tests our ability to live in a society that is necessarily defined by conflict

and controversy; it trains us in the art of tolerance and steels us for its
vicissitudes. (2010, p. 48)

This leads us to the next core justification for a free speech principle:
the argument from autonomy. The argument from autonomy31 is one
of the most well-versed arguments in defence of freedom of speech.32
In many guises, it is married to the argument from democracy, for it
appears to follow that, in order to have a flourishing democracy, we must
protect freedom of speech as a fundamental aspect of citizens’ individual
autonomy. In general, then, the autonomy defence concerns the ability
for an individual to govern themselves, to form, revise and live according
to their own conception of the good. Autonomy, as it is understood by
free speech theorists, can be defined as a kind of sovereignty over oneself.
Building on Kant, then, the autonomy argument is concerned with the
constraining effect speech restrictions have on one’s capacity to develop
and exercise moral independence. This argument is famously expressed by
C. Edwin Baker, who argues that:

31 For a comprehensive collection of arguments from autonomy see Christman and

Anderson (Eds.) (2005).
32 Proponents of the autonomy argument for a free speech principle include Scanlon
(1972), Dworkin (1985), Epstein et al. (1992), Baker (1989), Nagel (1995), Greenawalt
(1989), Redish (1984), and Meyers (1989).
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 33

Respect for personhood, for agency, or for autonomy, requires that each
person must be permitted to be herself and to present herself. She must be
permitted to act in and sometimes affect the world by at least some means,
in particular by trying to persuade or criticize others (that is, influence their
values, knowledge, perspectives, or emotions). (1989, p. 992)

However, despite this common basic understanding among supporters of

the role of autonomy as it relates to a free speech principle, what this
actually means in terms of acceptable kinds of speech regulation can be
interpreted in many different ways. For one, the interchangeability of the
autonomy and democracy arguments is a common theme in the litera-
ture. Robert Post’s (2011) argument for democratic self-government, for
example, endorses freedom of speech as instrumental in securing indi-
vidual freedom. Similarly, as James Weinstein (2011) argues, we cannot
realize the goals of participatory democracy if we are not permitted to
contest and shape government action according to our own interests.
Arguments for autonomy, in general, begin from invoking a version of
Mill’s ‘harm principle’, which states that.

The only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to
others. (2004, p. 14)

The rationale for this principle to defend a non-interference account of

free speech is clear: only speech that causes ‘harm to others’ is legitimately
regulable. We restrict anything else and it threatens the autonomy of the
individual. It is this premise, then, that critics of hate speech regulation33
invoke when they distinguish hate speech from other forms of restricted
speech, such as child pornography or incitement to violence. Interestingly,
however, even those liberals that endorse a broad conception of harm
for the purposes of autonomy,34 such as Dworkin (1985) and Scanlon
(1972), reject the claim that hate speech poses a similar risk.
On a most basic level, then, democracy allows individuals to express
one’s desires within a system of self-government. So, without the freedom
of expression afforded by freedom of speech, one cannot participate in
such a system of democratic self-government. Our interactions with other
people, the way we consume the media we hear and watch, the ideas we

33 See Dworkin (1985).

34 I refer to regulation in the name of redistributive or egalitarian goals.
34 S. WHITTEN

pursue through the act of expression, all of these things are fundamental
in informing and shaping our ideas, desires, and thoughts about ourselves
and the world around us.
Along such lines, Scanlon notes how we only become ‘equal,
autonomous, rational agents’ when we are ‘sovereign in deciding what to
believe… in weighing competing reasons for action’ (1972, p. 146). It is
this feature of freedom of speech which we should most be concerned
about, and one which underpins political concerns both about over-
regulation and of unequal access to speech rights. As we will see, however,
recognition of the central importance of human autonomy and moral
agency does not solve the problem of conflicting liberal values in the realm
of speech.

2.5 Exposing the Non-Interference Paradigm

Unsurprisingly, the evolution of contemporary interpretations of the First
Amendment has provoked a great deal of conflict. Here, the most promi-
nent free speech cases have not involved speech which may or may not
influence others to engage in imminent harmful action, but concern the
category of ‘hate’ speech, understood as speech that directly subordi-
nates or undermines the equal status of members of a particular group.
Mirroring the concerns relayed by Fiss (1996), critics have argued that
the protection of such speech is directly at odds with a commitment
to equality.35 Here, the First Amendment has remained staunch in its
refusal to extend non-protection to hate speech, despite the majority of
the world’s liberal democracies offering at least some protection against
it.36

35 For one of the most compelling critiques of this clash see Crenshaw et al. (1993).
36 The term ‘hate speech law’ covers a wide range of protections against certain kinds
of expression, and varies broadly among states and jurisdictions. The following, then, is
merely a summary. In Australia, the Racial Discrimination Act (1975) makes it “unlawful
for a person to do an act, otherwise than in private, if the act is reasonably likely, in all
the circumstances, to offend, insult, humiliate or intimidate another person or a group of
people; and the act is done because of the race, colour or national or ethnic origin of
the other person, or of some or all of the people in the group.” Sections 318, 319(1),
and 319(2) of the Criminal Code in Canada protect from hate speech “any section of the
public distinguished by colour, race, religion, ethnic origin or sexual orientation, gender
identity or expression, or mental or physical disability.” The code also legislates against
“hate propaganda” described as “any writing, sign or visible representation that advocates
or promotes genocide or the communication of which by any person would constitute
 2 QUESTIONING THE NON-INTERFERENCE PARADIGM 35

This unwavering protection of the realm of ‘ideas’ reveals several core

features of the First Amendment phenomenon. First, we must note the
way in which the influence of the Supreme Court cases has unhelpfully
constrained common understandings of the harm involved in hate speech.
Crucially, many who urge the courts to take hate speech seriously are
themselves confined by the narrow prescriptions of the ‘fighting words’
and ‘imminent lawless action’ provisos.37 This means that, in order to
fulfil the requirements of a prosecution, critics must present the harm of
speech in strictly welfarist terms. Speech that satisfies this ‘balancing of
harms’ exercise, such as child pornography and incitement, thus does so
because it poses a clear (and easily identifiable) threat to welfare.
This ‘translation’ of speech claims into consequentialist language
becomes clear when one takes even a cursory glance at the framing of
some common theoretical defences of speech restriction. Beginning with
the anti-pornography movement of the 1980s,38 we see activists and
theorists alike engage in self-confessed attempts to circumvent the narrow
confines of the constitution by re-imagining pornographic material not
as a form of expression but as a type of action.39 This, well-intentioned,

an offence under section 319.” Germany’s Criminal Code lists “incitement to hatred”
as a punishable offence, which includes, among other things, an extensive list of insults,
gestures, and slurs within its definition. In France, the penal code prohibits the defamation
of groups and individuals for their ethnicity, nation, race, religion, sex, sexual orientation,
or disability status (Article R. 624–3), and includes a second code forbidding incitement
to discrimination on the same grounds (Article R. 625–7). The Republic of Ireland’s
Prohibition of Incitement to Hatred Act (1989) prohibits expression intended to “stir
up hatred” against “a group of persons in the State or elsewhere on account of their
race, colour, nationality, religion, ethnic or national origins, membership of the travelling
community or sexual orientation.” In the United Kingdom, the Public Order Act (1986)
and the Racial and Religious Hatred Act (2006) prohibits speech that “stirs up” racial or
religious hatred.
37 Cass R. Sunstein (1986), for example, reflects on the struggles anti-pornography
campaigners of the time faced in attempting to frame their concerns in a way that was
compatible with court precedent. In this survey, he notes how previous attempts to
categorize pornography as ‘low-value’ speech under obscenity provisions failed to motivate
the courts effectively. It is no surprise, then, that campaigners worked to significantly shift
conceptual understandings of pornography in a way that drew attention to the harmful
way in which speech performs a kind of action, rather than simply displaying an image or
idea. See also MacKinnon (1984).
38 See MacKinnon and Dworkin (1988).
39 See Langton (1993). Here, pornography is akin to “illocutionary disablement”
(1993, p. 299), rendering a woman’s words incapable of performing their intended aims.
36 S. WHITTEN

attempt to play the courts ‘at their own game’, so to speak, did produce
several positive outcomes in the courts at the time of the original
campaign.40 Since then, however, attempts to motivate staunch defenders
of the non-interference standard in the U.S. to take seriously the role of
speech in undermining the free and equal status of its citizens have hit
a brick wall. Here, while the form of speech-act theory used by such
theorists offers invaluable conceptual tools for understanding the harm
in speech, such an approach proves insufficient in responding to the
stringent conditions of prevailing interpretations of the First Amendment.
The second relevant feature of First Amendment dominance is how
it operates within a narrow conception of freedom. Here, arguments
in support of protection function along a specific understanding of the
link between non-interference and autonomy, where our autonomy can
only be realized when state intrusion on our exercise of speech is as
limited as possible. A commitment to non-interference, as it is understood
here, stems from a scepticism of state intrusion in our affairs, partic-
ularly when the exercise of this freedom poses no discernible harm to
others.41 Autonomy-based arguments in free speech debates,42 however,
concern the role the expression of ideas plays in our enjoyment of
self-determination. Dworkin, in his criticism of the anti-pornography
campaign, argues for the autonomy case as thus:

People have the right not to suffer disadvantage in the distribution of social
goods and opportunities, including disadvantage in the liberties permitted
to them by the criminal law, just on the ground that their officials or
fellow-citizens think that their opinions about the right way for them to
lead their own lives are ignoble or wrong. (Dworkin, 1991)

40 MacKinnon has been hugely influential in changing international legal attitudes to

sexual harassment and pornography. In a 1992 Canadian ruling against pornography seller
Donald Butler, the Canadian Supreme Court cited a brief she had co-authored on the
direct influence pornography plays in the subordination of women. The case led to the
redefinition of obscenity under the Canadian Criminal Code section 163 to include not
only material that ‘offends public morality’ but that which depicts the exploitation of sex
and violence. See Herland (1998).
41 While many theorists defend hate speech restrictions in principle, they nonetheless
are swayed in favour of non-restriction due to concerns with the potential for state over-
regulation. This, I think, seems to be one of the main worries that U.S. citizens have in
regards to speech regulations. See Blasi (1977) and Epstein (1992) for versions of the
‘mistrust of government’ arguments in greater detail.
42 Some key proponents include Baker (1989), Dworkin (1985, 1991), Scanlon (1972,
1979), and Redish (1984), among others.
Another random document with
no related content on Scribd:
Que mais cabedal deseja,
Si és tão rica de perolas,
Que com varios chistes pedes
Todo um dia a mesma cousa?

Tu pedindo, e eu negando,
Que cousa mais preciosa,
Que val mais do que desejas,
E a ti nada te consola.

Cem mil réis de uma só vez!

Pois, pobreta, á outra porta:
Deus te favoreça, irmã,
Não ha trocado, perdoa.

Não ha real em palacio:

Ando baldo; perdi a bolsa,
Que são os modos com que
Se despede uma pidona.
 Á ANNICA
OUTRA SIMILHANTE PARDA PEDINDO-LHE UM CRUZADO
PARA PAGAR UNS SAPATOS

ROMANCE

Um cruzado pede o homem,

Annica, pelos sapatos,
Mas eu ponho isso á viola
Na postura do cruzado.

Diz que são de sete pontos,

Mas como eu tanjo rasgado,
Nem nesses pontos me metto
Nem me tiro d’esses trastos:

Inda assim si eu não soubera

O como tens trastejado
Na banza dos meus sentidos,
Pondo-me a viola em cacos:

O cruzado pagaria,
Já que fui tão desgraçado,
Que boli co’ a escaravelha,
E toquei sôbre o buraco.

Porém como já conheço

Que o teu instrumento é baixo,
E são tão falsas as cordas,
Que quebram a cada passo:
Não te rasgo, nem ponteio,
Não te ato, nem desato,
Que pelo tom que me tanges,
Pelo mesmo tom te danço.

Busca outros temperilhos,

Que eu já estou destemperado,
E estou na quinta do Pegas
Minhas cousas cachimbando.

Si tens o cruzado, Annica,

Manda tirar os sapatos,
E sinão lembre-te o tempo,
Que andaste de pé rapado.

E andavas mais bem segura,

Que isto de pizar em saltos
É susto para quem piza,
E a quem paga é sobresalto.

Quem te curte o cordavão

Porque não te dá sapatos?
Mas eu que te rôo o osso
É que hei de pagar o pato?

Que diria quem te visse

No meu dinheiro pizando?
Diria que quem t’o deu
Ou era besta, ou cavallo.

Pois porque não digam isso,

Leve-me a mim São Fernando,
Si os der, e si tu os calçares,
Leve-te, Annica, o diabo.
De mais, que estou de caminho,
E seria mui grande asno
Estar para dar a sola,
E a ti deixar-te os sapatos.

Agora si eu cá tornar,
Trarei pelles de veado
Para dar-te umas chinelas
Duraveis, que é mais barato.

Fica-te na paz de Deus,

Saudades até quando,
Vem-te despedir de mim,
Porque de hoje a oito parto.
 A UMAS MOÇAS
QUE COSTUMAVAM IR A UMA ROÇA

ROMANCE

Vamos cada dia á roça,

Si é que vai a camarada,
Que ri e folga á franceza,
E pinta á italiana.
Vamos, e fiquemos lá
Um dia ou uma semana,
Que emquanto as gaitas se tocam
Sabe a roça como gaitas.
Vamos á roça inda que
Nos fique em tantas jornadas
Cada meia sem palmilha,
E sem sola cada alparca.
Vá Mané, e vá Marcella,
Vá toda a nossa prosapia,
Excepto a que por casar
Não põe pé fóra de casa.
Case e tão casada fique,
Que nem para fazer caca
Jamais o marido a deixe,
Nem se lhe tire da ilharga.
Case, e depois de casar-se
Tanto gema, e tanto paira,
Que caia em meio das dores
Na razão das minhas pragas.
Case, e tanto se arrependa,
Como faz toda a que casa,
Que nem para descasar-se
A via da egreja saiba.
E nós vamos para a roça
Co’nosso feixe de gaitas,
Até ver-me descasada,
Para me rir de quem casa.
 Á MULATA JOANNA GAFEIRA
ESTANDO QUEIXOSA DO POETA A HAVER SATYRISADO

ROMANCE

Não posso cobrar-lhes medo,

Joanna, a vossos focinhos,
Que como sois tão formosa,
Cede á verdade o fingido.
Tanta olhadura a travez,
Tanto focinho torcido,
Tanto pescoço empinado,
Tanto esguelhado beicinho,
São modos tão extrangeiros,
Alheios e peregrinos
Das perfeições naturaes
Do vosso rosto divino,
Que jámais podem fazer
No meu peito amante e fino
Retroceder as tenções,
Nem arribar os designios.
Sempre caminhando ávante,
Nunca deixando o caminho,
Ando atraz de ver si posso
Chegar a vosso captivo.
Si me ferraes esta cara
Co’um favorzinho de riso,
Me hei de rir de farto então
Do mundo e seus regosijos.
Hei de pôr-me a rir então
De sorte que a riso fito
Me hão de ter em todo o orbe
Por Democrito dos risos.
Olharei para a Beleta,
 E me rirei dos meninos,
Que andam sempre a belisca-la
Qual mono com seus bugios.
Olharei para Apollonia,
E de a ver entre os corrilhos
De tanta canastra honrada,
Que é a nobreza do sitio.
Rirei de ver cada um
Ir-se d’aqui despedido,
Entonces mais carregado,
Porque entonces mais vazio.
A elles pelas estradas
Suspirando pelo sitio,
A ella pelos oiteiros
Zombando de taes suspiros.
A elles tomando o tolle
Para o sertão fugitivos,
Tanto fugindo dos amos,
Como da conta fugindo.
A ella por capoeiras
Estreando co’ os meninos
A baetinha dos pobres,
A serafina dos ricos.
Para a Ursula olharei,
E rirei de a ver no Sitio
Parafuzando pivetes
Pela tarracha do embigo.
Rirei de ver os amantes,
Rirei de ver os queridos,
Que tendo-se por ditosos,
São em seus gostos mofinos.
E só feliz eu serei,
Si lógro os vossos carinhos,
E me impingis nesta cara
Da vossa bocca um beijinho.
Tende-me na vossa graça,
E a queixa se torne em riso,
A malquerença em amor,
E o desfavor em carinho.
 Á DAMAZIA
OUTRA MULATA QUE CHAMAVA SEU UM VESTIDO QUE
TRAZIA DE SUA SENHORA

ROMANCE

Muito mentes, mulatinha!

Valha-te Deus por Damazia,
Não sei quem, sendo tu escura,
Te ensina a mentir ás claras.
Tal vestido, e com tal pressa!
Não vi mais ligeira saia:
Mas como a seda é ligeira,
Foi a mentira apressada.
Tal vestido não é teu,
Nem tu tens, Damazia, cara
Para ganhar um vestido,
Que custa tantas patacas.
Tu ganhas dous, tres tostões
Por duas ou tres topadas,
Não chegam as galaduras
Para deitar uma gala.
Nem para os feitios chegam
Os troquinhos que tu ganhas,
Pois não vale o teu feitio
Mais que até meia pataca.
De soldado até sargento,
Ou até cabo de esquadra,
Não passa o teu roçagante,
Não te chega a triste alçada.
Estes que te podem dar
Mais que uma vara de cassa,
Uma cinta de baeta
E saia de persiana;
Collete de chamalote,
E de vara e meia a fralda,
Que fazem oito mil réis,
Que é valor da pobre farda.
Todos sabem que o vestido,
Que em verdes campos se esmalta,
É verdura de algum besta,
Que em tua senhora pasta.
Mas o que é d’ella teu é,
Que é outra que tal jangada,
E talvez por t’o emprestar
Se ficaria ella em fraldas.
Apostemos que não vestes
Outra vez a verde saia!
E nem de a vestires mais
Te ficam as esperanças.
Ora toma o meu conselho,
E vive desenganada,
Que emquanto fores faceira
Não has de ganhar pataca.
 Á UMA DAMA
POR NOME IGNACIA PAREDES

ROMANCE

Quiz ir a festa da Cruz

Ignacia, e faltou-lhe a rede,
Como que foi força ficar
Paredes entre paredes.

Outros dizem que uma amiga

Lhe pediu o manto adrede,
Pela ter emparedada
Todo o dia, em que lhe peze.

Não sei a verdade d’isto,

Sei que eu paguei a patente,
Tendo um dia de trabalho,
Porque de festa lh’o désse.

A saber que estava em casa,

Visitara-a como sempre,
E fizera o que costumam
Casados in facie Ecclesiæ.

Fôra-me pôr á janella,

Porque o calor me refresque,
Fallára co’as Guapas sujas,
Que são limpas guapamente.

Marianna se agastára,
Que tudo escuta e attende,
Por isso diz o adagio:
Manso, que ouvem as paredes.
Sabendo d’este ciume
Foram as Guapas contentes,
Que inda que mulheres feias,
São feias, porém mulheres.

Ignacia se socegára,
Que é moça mansa e alegre,
E com dous mimos se põe,
Sendo Ignacia, uma clemente.

Da sua amiga me queixo,

Que cão de horta me parece,
Pois em todo o dia nunca
Comeu, nem deixou comer-me.

Com Ignacia já não quero

Lançar mais barro á parede,
Que de mui sêcca receio
Que alli meu barro não pegue.

Uma mãe com duas filhas

Na verdade é pouca gente,
Para que eu possa cantar
Prêso entre quatro paredes.

Tres só não fazem prisão,

Porque um triangulo breve,
Que um sino Salmão figura,
Mais enfeitiça que prende.

Mas a parede de Ignacia,

Com ser uma tão sómente,
Como é tão forte e tão rija,
Bastou só para prender-me.
Perdi o ganho essa tarde,
E cuido que para sempre,
Quem m’a pegou uma vez,
Não quero que outra me pegue.

Da Sancta Cruz era a festa,

E a maldicta da Paredes,
Com cruz e sem cruz receio
Me faça calvarios sempre.

Eu perdi moça que agrade,

Ella velho que aconselhe,
Ambos ficámos perdidos,
Quem o vê que o remedeie.
Á UMA MOÇA POR NOME BARBARA
ROMANCE

Babú, como ha de ser isto?

Eu me sinto já acabar,
E estou tão intercadente,
Que não chego té amanha.
Morro da vossa belleza,
E si ella me ha de matar,
Como eu creio que me mata,
Formosa morte será.
Mas seja formosa ou feia,
Si o Deão me ha de enterrar,
Por mais formosa que seja,
Sempre caveira será.
Todos já aqui desconfiam,
Tudo é já desconfiar,
Da minha vida os doutores,
E eu de vosso natural.
Desconfio de que abrande
Vosso rigor pertinaz;
E a minha vida sem cura
Sem duvida acabará;
Porque si estaes incuravel,
E tão sem remedio está
O achaque de não querer-me,
E o mal de querer-me mal:
Que esperança posso eu ter,
Ou que remedio ha capaz,
Si vós sois a minha vida,
E morreis por me matar?
Amor é união das almas
Em conformidade tal,
Que porque estaes sem remedio,
 Por contagio me mataes.
Curai-vos de mal querer-me,
E do fastio em que estaes
A minha triste figura,
Que ao demo enfastiará.
Comei, e seja o bocado,
Que com gosto se vos dá,
Porque em vós convalescendo,
Hei de eu também melhorar.
Assim sararemos ambos,
Porque si vós me enfermaes
Pelo contagio, o remedio
Por sympathia será.
Vós, Babú, viraes-me as costas,
Pois eu faço outro por tal:
Estou ás portas da morte,
A falla me falta já.
Quero fazer testamento,
Mas já não posso fallar,
Que vós por costume antigo
Sempre a falla me quitaes.
Mas testarei por acenos,
Que tudo em direito ha,
E si por louco o não posso,
Posso por louco em amar.
Todos meus bens, si os tivera,
Os deixára a vós não mais;
Mas deixo-vos para outrem,
Que é o mais que posso deixar
Si hei de deixar-vos a vós
Quantos bens no mundo ha,
Em vos deixar a vós mesma,
Arto herdada assim ficaes.
Em suffragios da minha alma
Não gasteis o cabedal,
Que aos vossos rigores feita
Penas não ha de extranhar.
Mas si por minhas virtudes,
E si por vos jejuar,
E si por tantas novenas,
Que á vossa imagem fiz já,
Vos mereço algum perdão
Dos peccados que fiz cá,
Assim em vos perseguir,
Como em vos desagradar:
Com as mãos postas vos peço
Que no vosso universal
Juizo mandeis minha alma
Ao vosso Céu descançar
Não a mandeis ao Inferno,
Que arto inferno passou cá:
Adeus, e apertae-me a mão,
Que eu me vou a enterrar.
 SATYRISA
ALLEGORICAMENTE A VARIOS LADRÕES DA REPUBLICA

ROMANCE

Hontem, Nise, á prima noite

Vi sôbre o vosso telhado,
Assentados em cabido,
Cinco ou seis formosos gatos.
Estava a noite mui clara,
Fazia um luar galhardo,
E porque tudo vos diga,
Estava eu em vós cuidando.
O presidente ou deão,
Na cumieira assentado,
Era um gato macilento,
Barbirruço e carichato.
Os demais em boa ordem,
Pela cumieira abaixo,
Lavandeiros de si mesmos,
Lavavam punhos e rabos.
Tão profundo era o silencio,
Que não se ouvia um miau,
E o deão interrompeu
Dando um mio acatarrado.
Tossiu, tossiu, e não pôde
Articular um miau,
Que de puro penitente
Traz sempre o peito cerrado.
Eis que um gatinho Reinol,
Muito estitico e mui magro,
Relambido de feições,
E de tono afalcetado,
Quiz por primeiro fallar,
 E fallára em todo o caso,
Si outro gato casquiduro
Lhe não sahira aos embargos.
«Eu sou gato de um meirinho,
Disse, que pelos telhados
Vim fugindo a todo o trote
Do poder de um saibam quantos.
Com que venho a concluir
Que servindo a taes dous amos,
Hei de fallar por primeiro,
Porque sou gato de gatos.
Falle, disse o Presidente,
Pois lhe toca por anciano,
E elle tomando-lhe a venia
Foi o seu conto contando.
Em casa d’este escrivão
Me criei com tal regalo,
Que os demais gatos de casa
Eram commigo uns bichanos.
Mas cresci e aborreci,
Porque se cumprisse o adagio
Que official de teu officio
Teu inimigo declarado.
Foi-me tomando tal odio
Porque foi vendo e notando,
Que era eu capaz de dar-lhe
Até no officio um gatazio.
Topou-me em uns entreforros,
E tirando-me porraços,
Eu lhe miava os narizes,
Quando elle me enchia os quartos.
Fugi, como tenho dito,
E me acolhi ao sagrado
De uma vara de justiça,
Que é valhacouto de gatos.
Sahe meu amo aos prendimentos,
E eu fico em casa encerrado
 Por caçador de balcões,
Onde jejuo o trespasso.
Porque em casa de um meirinho,
Nas suas arcas e armarios,
É quaresma toda a vida,
E temporas todo o anno.
Não posso comer ratinhos,
Porque cuido, e não me engano,
Que de meu amo são todos
Ou parentes ou paisanos.
Porque os ratinhos do Douro
São grandissimos velhacos:
Em Portugal são ratinhos,
E cá no Brazil são gatos.
Eu sou gato virtuoso,
Que a puro jejum sou magro:
Não como por não ter que,
Não furto por não ter quando.
E como sobra isto hoje
Para me terem por sancto,
Venho a pedir que me ponham
No calendario dos gatos.»
Acabada esta parlanda,
Muito ethico de espinhaço
Sôbre as moletas das pernas
Se levantou outro gato,
Dizendo: ha annos que sirvo
Na casa de um boticario,
Que a recipe de pancadas
Me tem os bofes purgados.
Queixa-se que lhe comi
Um boião de unguento branco,
E lhe bebi nessa noite
Um cangirão de rhuibarbo.
Diz bem, porque assim passou,
Mas eu fiquei tão passado,
Como de tal solutivo