Randal Marlin
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2. Censorship will not succeed—scandalous, seditious, and libellous works will still circulate. Nor will evil cease. Evil forms of activity can be learned without books.
3. Censorship requires censors, who will have to read the materials. If the material is
corrupting, what will happen to the censors themselves?
4. Censorship of publications puts us on a slippery slope: if books are regulated, why
not also dance and music? Why not all recreations and pastimes, what we eat,
drink, and wear? Even our talk might come to be regulated (JM 23–24).
5. If state control prevents us from contact with all things that might incline us to
do evil, what role will there be for individual virtue (JM 25–26)? If God has so
ordained things that evil and good both exist in the world, why should we act dif-
ferently? God has given people a trial on earth. By what right should anyone take
away this trial?
6. If a person believes some doctrine only by virtue of the bidding of a pastor or leg-
islative authority, then, even if the belief is true, there is heresy of a kind, because
freedom of conscience is thereby negated (JM 37).
7. The only kind of people who would want to take on the job of censor are suspect,
likely being “either ignorant, imperious, and remiss, or basely pecuniary” (JM 28).
The censor will likely be the inferior of the scholar, who wants to be published.
8. What guarantee of truth will there be to a teacher, when all texts are under the
control of the patriarchal licenser? The office charged with censorship will likely
accept for publication only what fits in with the preconceptions of the general
public. (Milton was keenly aware of the degrading task involved in editing a com-
plicated and laboriously worked text only for the purpose of satisfying some blin-
kered and uninspired censor’s mind.)
In spite of all the rousing things Milton has to say in defence of free expression,
he does not believe that “anything goes” and quite definitely endorses the censorship
of two classes of persons: Roman Catholics and atheists. The passage in which he
says this deserves to be quoted in ful , since it will otherwise be difficult to believe he
actually said it:
I mean not tolerated popery and open superstition, which as it extirpates all religions
and civil supremacies, so itself should be extirpated, provided first that all charitable
and compassionate means be used to win and regain the weak and the misled: that
also which is impious or evil absolutely, either against faith or manners [morals], no
law can possibly permit that intends not to unlaw itself. (JM 52)
These exceptions to his general principles will seem most odd to a contemporary
audience, but it should be borne in mind that Milton feared that if Catholics regained
power, freedom for people like himself to express themselves openly would disappear.
The increased tolerance of today may stem from diminished fear of the consequence
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of a religious group gaining power in our Western democracies. Consciousness of the degree of unfreedom allowed under the Taliban government in Afghanistan can
heighten our awareness of the problem. So, in judging Milton’s expressions of intoler-
ance, we should be careful to recall the historical circumstances of his writing and con-
sider whether our current tolerance would apply under similar circumstances, given
that most people feel secure in the belief that an intolerant religious group is not about
to take control of our society. Under these circumstances, one can feel indifferent to
expressions of intolerance, knowing that they are not likely to translate into power.
The Victorian writer John Morley spoke insightfully about tolerance in the early twen-
tieth century in his book On Compromise:
We constantly hear the age lauded for its tolerance, for its candour, for its openness
of mind, for the readiness with which a hearing is given to ideas that forty years
ago would have excluded persons suspected of holding them. Before, however, we
congratulate ourselves too warmly on this, let us be quite sure that we are not mis-
taking for tolerance what is really nothing more creditable than indifference. These
two attitudes of mind, which are so vitally unlike in their real quality, are so hard to
distinguish in their outer seeming.6
Milton’s thinking parallels writers of the 1950s who felt that censorship of
Communist literature was justified because, if the Communists came into power,
they would readily impose censorship themselves. “No freedom for the foes of free-
dom,” is one form of expression for the thinking involved. As for atheism, such was
the intertwining of religion and morals in Milton’s day that an attack on God was seen
as an attack on morality as well. Once again, the modern reader is so used to the idea
that morality can exist despite disbelief in God’s existence that Milton’s view seems
both inconsistent and unacceptable. A modern equivalent of what Milton was con-
templating—that is, something that allegedly undermines the morality of our fellow
citizens—is the case of mind-altering drugs. Fear of such an outcome, whether or not
well-founded, has helped to fuel opposition to marijuana use today.
John Locke (1632–1704) explicitly shares Milton’s opinion that atheists and those
who subject themselves to a religion tied to a foreign state, such that their civil alle-
giance to the Crown might conflict with their religious obligations, should not be
tolerated by the civil magistrate. Nor, for Locke, should those be tolerated who profess
to have special privilege or power derived from religion over the civil authority or who
“will not own and teach the duty of tolerating all men in matters of mere religion”7—
“mere” presumably referring to religions that are not tied to political power. Missing
from Locke’s account, as Fitzjames Stephen argues in a critique, is the principle that
“free inquiry is the great, and indeed almost the only possible guarantee for the
truth of any doctrines whatever. Persecution destroys this guarantee, and is therefore
unfavourable to any intelligent and real belief in the truth of any creed whatever.”8
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Fitzjames Stephen is clearly indebted to John Stuart Mill for this insight, though he criticizes Mill as well.
JoHn STUART MILL
Mill’s On Liberty deserves a pre-eminent place among texts devoted to defence of a
liberal theory of free expression. The influence of this essay in the English-speaking
world has been enormous. His arguments, or variations on them, still form part of the
arsenal that civil libertarians use to defend such freedom today. They are interesting
philosophically because they are not merely polemical broadsides aimed indirectly at
promoting a particular cause, with free speech invoked for that ulterior purpose. On
the contrary, they are linked to the project of providing a coherent view of human
social and political existence. For that very reason, Mill
can be turned against himself
by adapting one or other of his basic contentions to support a different outcome than
the one he envisages. His arguments in favour of free speech warrant close study, as
do also the exceptions he allowed to his basic principle of maximizing such freedom.
Underlying Principles
Mill’s book begins with an epigraph from a treatise on government written by the
noted German scholar, sage, and politician, Wilhelm von Humboldt, whom he clearly
admires. Humboldt’s central doctrine is that “the end of man ... is the highest and most
harmonious development of his powers to a complete and consistent whole” and that
from “freedom and variety of situations” comes the desired object, that is, “the indi-
viduality of power and development.”9 This supports Mill’s anti-paternalistic stance.
The idea that the state should act as a kind of nanny to grown persons by legislating to
protect them from making bad decisions affecting themselves was abhorrent to him.
He says:
[T]he only purpose for which power can be rightfully exercised over any member of
a civilised community, against his will, is to prevent harm to others.... His own good,
either physical or moral, is not a sufficient warrant. The only part of the conduct of
anyone for which he is amenable to society is that which concerns others. In the part
which merely concerns himself, his independence is, of right, absolute. Over himself,
over his own body and mind, the individual is sovereign. (JSM 13)
In other words, the state has no business forcing people to refrain from unhealthy
eating or drinking habits, or preventing them from skydiving or mountain-climb-
ing, so long as others are not endangered thereby. There are immediate free speech
implications to be drawn from this premise. If an adult wants to hear someone else’s
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dangerous, corrupting thoughts and theories, he or she should be permitted to do so.
On the face of things, this seems to mean that incitement to treason, encouragement
to use of drugs, tobacco advertising, counselling of suicide, pimping, and so on, should
be permitted. The philosophy seems to say that people are free to go to hell anyway
they choose, so long as they don’t harm others. In fact, Mill does not draw such an
unequivocal conclusion. He provides exceptions to the principle of free speech, but
even before that, he provides exceptions to his basic anti-paternalistic principle. The
exceptions are threefold:
It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to
human beings in the maturity of their faculties. We are not speaking of children or
of young persons below the age which the law may fix as that of manhood or woman-
hood. Those who are still in a state to require being taken care of by others must be
protected against their own actions as well as against external injury. For the same
reason we may leave out of consideration those backward states of society in which
the race itself may be considered in its nonage.... (JSM 13–14)
In other words, paternalism is acceptable not only where children are concerned
but also, more generally, where people are not in possession of mature faculties. This
presumably includes those who are insane and unable to look adequately after their
own interests in a predatory environment. His third exception is part and parcel of
the British colonial mentality of his time and at the very least has to be rephrased to
get a sympathetic hearing today. The idea that a whole people could be so backward
as to vitiate a right of free speech is of course repugnant to modern ears attuned to
signs of racism.
Crucial to Mill’s defence of his anti-paternalist stance is his distinction between
what is in the sphere of an individual’s interest and what is in society’s interest. He
thinks that there is, indeed, a sphere of action which is directly in an individual’s inter-
est and in which society has “if any, only an indirect interest: comprehending all that
portion of a person’s life or conduct which affects only himself or, if it also affects
others, only with their free, voluntary, and undeceived consent and participation”
(JSM 15–16). He recognizes that what affects oneself can also indirectly affect others
and that problems for his theory can arise from this fact. A second major difficulty
comes from disagreement about whether the fallout from a person’s activity when it
does affect others can be construed as harm or not. Perhaps someone doesn’t like the
message carried on a placard in a political demonstration. Perhaps a message support-
ing a right to abortion gives distress to some, while a message seeking to criminalize it
upsets others.10 At what point does this distress become harm justifying suppression?
Two other questions arise from Mill’s essay on liberty: can his exceptions be
meshed consistently with his philosophy? And is his proclaimed utilitarianism con-
sistent with either the underlying principle of non-paternalism or with the exceptions
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he makes? Before looking at these questions, we need to examine Mill’s arguments in favour of free speech and the reasons he gives for requiring exceptions.
Free Speech Arguments
Mill brings a battery of considerations and arguments to bear on his free speech prin-
ciple, which is concisely stated in a footnote to his Chapter Two. The principle is that
“there ought to exist the fullest liberty of professing and discussing, as a matter of
ethical conviction, any doctrine, however immoral it may be considered” (JSM 20).
Self-Development and Social Benefit
The tendency to conformity is strong, and people with original but challenging ideas
are likely to be silenced if there is no recognition of the value of nonconformity.
George Bernard Shaw was later to put this idea very succinctly when he said, “The
reasonable man adapts himself to the world: the unreasonable one persists in trying to
adapt the world to himself. Therefore all progress depends on the unreasonable man.”11
Mill acknowledges that there is a need to protect a minority not only against tyranny
by the state but also against the formidable social tyranny that is more difficult to
escape, penetrating as it does “much more deeply into the details of life, and enslaving
the soul itself.” From this comes Mill’s call for resistance to this social tendency:
Protection, therefore, against the tyranny of the magistrate is not enough; there
needs protection also against the tyranny of the prevailing opinion and feeling,
against the tendency of society to impose, by other means than civil penalties, its
own ideas and practices as rules of conduct on those who dissent from them; to fet-
ter the development and, if possible, prevent the formation of any individuality not
in harmony with its ways, and compel all characters to fashion themselves upon the
model of its own. (JSM 7)
Thus, the twofold benefit from free expression is both to individual self-development
and to the society that
profits from the new ideas.
Infallibility and Legitimacy
A quite different thread in Mill’s argument concerns legitimacy. The strength of an
idea cannot be measured without giving it a fair hearing. Truth is not to be deter-
mined by political power, but by examining its claims in the light of relevant evidence.
The power to silence expression of non-conforming views is illegitimate: “If all man-
kind 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”
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because there is an implicit assumption of infal ibility when one engages in such suppression. “To refuse a hearing to an opinion because they are sure that it is false is to
assume that their certainty is the same as absolute certainty. All silencing of discussion is an assumption of infallibility” (JSM 21–22). If we allow that we are not infallible,
then we must recognize the possibility that the view we want to suppress is true, and,
if so, we do wrong to suppress it. Therefore, the preservation of truth is one reason for
allowing maximum liberty in expression.
In fact, Mill concedes that some people bent on censorship do not necessarily
claim infallibility; instead, they claim certainty strong enough to warrant action. As
he phrases the objection, in reference to power-holders: “To prohibit what they think
pernicious is not claiming exemption from error, but fulfilling the duty incumbent
on them, although fallible, of acting on their conscientious conviction” (JSM 23).
Government leaders constantly have to make tough decisions affecting the lives of
others without having absolute certainty. To Mill’s credit, he puts the objection to his
own position quite forcefully: “There is no such thing as absolute certainty, but there
is assurance sufficient for the purposes of human life. We may, and must, assume our
opinion to be true for the guidance of our own conduct; and it is assuming no more
when we forbid bad men to pervert society by the propagation of opinions which we
regard as false and pernicious” (JSM 24). Mill’s answer to this objection is impressive.